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c r i i PAPUA.

No.

XLVIII.

of 1912.

AN ORDINANCE· To provide for tIle Distribution of the Estates of Insolvent Debtors alllongst their Cl'editors, and their Release from their Debts, all:d for other purposes.

J. H. P. MURRAY .

.

[L.S.]

·16th J~tly, 1912.

BE it enacted by the Lieutenant-Governor of the Territory of Papua with t1!e advice and consent of • the Legislative Council thereof as follows :- P ART I.-PRELIMINARY.

.

1.

This Ordin~1}ce may be cited as the "Insolvency Short title.
Orodinance, 1912."

.

I t shall commence on a day to be fixed by the Oommence Lieutenant-Governor by proclamation published in the manto Gazette.

2.

This Ordinance is divided into Parts as follows:- Division.

PART I.-PRELIMINARY.

PART II.--CONSTITUTION AND POWERS OF COUR'f ,ANP PRACTICE, 2 Insolvency Ordinance.

PART IlL-DEBTORS' PETITIONS.

PART IV.-CREDITORS' PETITIONS.

PART ·V.-CONSEQUENCES OF CUSTODY AND VESTING OF PROPERTY.

.. A .. DJTTDICATION- PART Vr.-ADMINISTRATION OF PROPERTY.
PART VII.-CLOSE OF INSOLVENCY .AND CERTIFI-' CATE.

PART VIII.-SUPPLEMENTAL PROVISIONS.

PART IX.-LIQUIDATION BY AR.RANGEMENT.

PART X.-COMPOSITION WITH CREDITORS.

PART XL-OFFENCES.

Inbernrptation Q.

3'1 Vic.

No.5, s. 4.

3.
In this Ordinance, unless' the contrary intention appears- ," The Court" Ineans the Centra.l Court of the Territory "Exalllining l\1agistrate" means any Inagistrate , before whOln any person is ordered to attend for exal11ination under this Ordinance "Registrar" nleans the i'egistrar of the Central Court "Registry" means the office of, the Hegistrar "Property" Il1eanS and includes luoney goods· things in action land and every description of property whether real or personal also obligations eaSOll1ents and every description of estate interest and profit present or future vested or contingent arising out of or incident to property as above defined "Debt provable in insolvency" includes any debt • .
or liability 'by t.his Ordinance made provable in insolvency " Creditor" Ineans also any two or Inore persons .

being jointly interested as partners or other wise a~d incorporated and joint stock companIes " Creditors present at any meeting" and . "

Creditors asseIl1bled at any m.eeting" include creditors who are represented by.'

som.e person duly authorised by such 'creditors in w r i t ing ' , i j I 1 ;1 i :1 l " .----~~~=--~~-~~.

r'~-~-~'~-'.~~~--~'.-~-~ I ~ .


Insolvency Ordinance: 3 "Secured Creditor" means any creditor holding any mortgage charge or lien on the insolvent's estate or any part thereof as security for a d,3bt due to him.

t t 4.

Whenever under this Ordinance' it shall be Mode of " t f calculating necessary 0 COnlpU e a maJor!

y 0 crer It.ors no cre 1 or majority of whose debt does not exceed ten pounds shall be counted creditOis.

in reckoning a majority in number but the debt due to ~·o~~:,:~c5.
such creditor shall be taken into account in reckoning a majority in value.

d't i' 5.

The enactments mentioned in the Schedule Repeal and hereto are repealed, saving always t~leir effect in regard ~~~,it~~r,.

to any act or deed done or granted prIOr to the COlllmenC8- ment of this Ordinance: .
Provided always that all 111atters at the commence ment of this Ordinance pending in the insolvency jurisdiction of the Central Court under the enactments hereby repealed shall be continued and completed therein as if this Ordinance had not been passed.

6.

(1.)

The provisions of this Ordinance shall have Ap~licationof effect only in .

cases where the petition for adjudication g.:~~llr:ance to of insolvency is presented after the COlnmencenlent of insolvencies.
this Ordinance but every 'act of insolvency petitioning Ib., s. 7. creditors' debt or other thing existing or done before the connnencmnent of' this Ordinance which would have authorised proceedings in insolvency or have ~upported adjUdication of insolvency under the el~:1ctments hereby repealed and which if it had existed or been done after the commencement of this Ordinance would have authorised proceedings in insolvency or have sup-ported adjudication of insolvency under this Ordinance shall be sufficient to authorise proceedings in inHolvency and to support adjudication of insolvency under this Ordinance.
(2.)

Any proceedings taken with a. view to obtain adjUdication of insolvency before the COIO,mencement of this Ordinance which if they had been instituted after such commencement would have supported adjudication of insolvency shall have the like validity effects and consequences as if they had been so instituted.

(3.)
(3.)

For the purpose of this section the words" pro ceedings in insolvency" shall include proceedings in any court of criminal jurisdiction for the punis}ullent of any offence against the law of insolvency and proceedings in 1 1 , i , 4.

Insolvency Ordinance.


any court of civil jurisdiction in respect of or for the purpose of avoiding any oonveyance assignrrlent gift delivery or transfer of property or charge thereon or paynlent of llloney or other act or thing being an act of insolvency or fraudulent preference.

PART II.-CONSTITUTION AND POWERS OF COURT: PRACTICE.

7.

The Central Court of the Territory shall be the ' I I I Central CO~lrt ~o be courtm court of insolvency Insolvency.

• ~.

3~ Vies.
• ~.

3~ Vies.

o. ,s.. All the powers by this Ordinance oonferred upon the said Court 111ay be exercised by a single judge thereof.

8.

Any judge Inay sit in ohanlbers for the de'spatch Junge mn.y sit ill chllmbers.

of such business as luay without detrinlent to the public advantage arising fr01n the discussion of questions in Ib., s. 10. open court be heard in chanlbers and ,vhen sitting in chalubers he shall have in all respects like power and' 'jurisdiction as when sitting in ~ourt.
Power;:; of judg-e in insolvency.

COrTI'lne Q.

38 Vic.

No.5, s. 11.

9.

Every judge in insolvency shall for the purposes of this Ordinance have all the powers and jurisdiction of a judge of the Central Court and the order~ of such judge luay be enforced accordingly in the same luanner as those of, a judge of the Central Court or in such other nlanner as Inay be presoribed.

11 I 10.

The court.

in insolvency Inay review resoind or vary any order 111ade by it in pursuance of this Ordinance.

Court.
Court.

may review its orders, Q.

38 Vic.

th No.5, B.

14. e 8pec'al C~Re may besMed.

jurisdiction of the court the parties concerned l11ay at any stage of the proceedings state any question or lb., s. 19. questions in a special case for the opinion 01 the court And if in such case it is stated that the decision of-the court shall be final no appeal shall lie thel'efronl.

h' • n any 1nso vency or ot ler procee lng WIt III ] .

d" 1 .

• Mode of t king e, idt'.·oE'.

lb., S. 20.

12.


The court Inay in a,ll nlatters within its jurisdic tion at its discretion take the whole or .any part of t~e evidence viva voce upon oath or by interrogatories In .

writing or upon affidavit ot' in any of such ways and Dlay issue cOHullissions for the purpose of t.aking evidence at any place either, within or without the Territory.

~;:~~~1 ~!~s.

lb., s. 21.

13.
The court may award costs in any matters under thl'S Ordinance and costs so awarded shall be recoverable in the same nlannE}r as costs awarded by an order of th~ ----.~-- -~ -~~-------- - - ~ - ~ __ -- __ - - ____ ~ -__ ~ ___ ~ _ i nsoipency Ord~nance, Central Court and the like remedies may be had on an .. order under this Ordinance for costs as on any such order of the Central Court or such other remedies as may be prescribed, d 14~ Subj ect to the provisions of this Ordinance the General power .c 11 h '1 h 'd (lofthec!
)tlrt, ave 1 u power to em e a ques Ions or Q.

38 Vic.

court s al priorities and all other questions whatsoever whether of No.5, s. 22. law or fact arising in any case of insolvency cOlning within the cognizance of the court or which the court may deeln it expedient or necessary to decide for the purpose of doing complete justice or T11aking a complete distribu- tion of property in any such case.

t' I-I 15.
t' I-I 15.

Where the court cOlllnits any person to prison aoml~litment the comnlitment Inay be to such convenient prison as the ~.

;~~s26: court thinks expedient and if the gaoler of any prison refuses to receive any prisoner so comnlitted he shall be liable for every such refusal to a penalty not exceeding one hundred pounds.

Gene1'al Rules.

t f - 1 f 16.


General rules in this Ordinance described as General rules th mtly be made e from time to - 1 b I'u es 0 cour Inay e rl1aC e rOn1 IJIP.18 effectual execution of this Ordinance and of the objects time.

thereof and the regulation of the practice and procedure Ib., s. 27. upon insolvency petitions and the proceedings thereon and the said general rules 111ay from tirne to time be revoked and altered.
t .0 TITle or t' f 4-' All such rules shall be made by the Chief Judicial Officer.

preSCrl e regu a IOns 17.

~t\.ny general rules made as aforesaid may Mattl'rs to be 'b I,r;)v.ded for by g'elleral as to the service of insolvency petitions including rule".

.

1 t' Ib., s. 28.

- .

, .
prOVISIOnS for substltuted service - as to the valuing of any d~bts provable in an insolvency as to the valuation of securities held by creditors as to the giving or withholding interest or discount on or in respect of debts or dividends as to the funds out of which costs are to be paid the order of payment and the anlount of taxation thereof ~ - - - _ ~ ~ ~ ~ _ ~ ~ - - - ~ _ c ~ _ ~ Insolvency Ordinance; - - as to the fees to _be chai·ged· and collected for any business dOIle by the court of insolvency or any officer thereof and as to V'lhether the saIne shall be collected by stanlps or otherwise and as to any other lnatter or thing whether silnilar or not to those above enulllerated in respect to which it lIlay be expedient to nlake rules for this carrying Ordinance the objects of into - effect and any rules so lnade shall be deellled to be within the powers cpnferred by this Ordinance and shall be of the SaIlle force as if they were enacted in this Ordinance.
18.

Until rules have been nlade in pursuance of this Ordinance and so far as such rules do not extend the principles practice and.

rules on which the Central Court has heretofore acted in dealing with insolvency proceed ings shall be observed by the Court in insolvency cases under this Ordinance.

Continuanoe of rules in fOlc·.

Q.

38 Vic.

No.5, P. 29.

A pplication of the Ordinance to Debtors.

J o:nt stock compania; excluded.

Ib., s. 30 altered.

19.


COlnpanies corporate or registered under" The Companies Act 1863 (Queensland Adopted)" or any Ordi nance alllending the _ sanle or substituted therefor shall not be adjudged insolvent under this Ordinance.

20.- Except as aforesaid the provisions of this Ordi mherwisethis Ordfnance to nance respecting adjudication of insolvency shall extend ~b.~ t 3~.

• and be applicable to all debtors residellt within the Territory or having propel~ty within the Territory.

21.
21.

All adjudications of insolvency shall be made by Adjndico.tion ~tl~~r~rCoul't.

the Central Court or a judge thereof a.nd not otherwise.

Ib., s. 32.

--P'I'actice.

t' t' b b e'y pe I IOn.

22.

Proceedings for adjudication of insolvency shall be pres~nted at and filed in the registry.

23.

Any petition for adjudication of insolvency may Proceedings to b,.

by pE'tition.

Ib., s. 33.

Petition when i~dh~~~ .

lb., B.

34. ny -person prejudiCIally affected by any Annulling acljudica.tion.
adjudic~tion of insolvency may within the prescribed tinle and on the prescribed notice to all parties apply to lb., s. 39. the court to annul the adjudication and it sufficient cause be shown the court shall annul the same accordingly .

2.A1 A "'Ii".

.

- - j nsoZvenoy OrdiJianoe.

PART III.-DEB'rORS' PETITIONS.

'25.

Any debtor nlay petition for adjudication of Del?t.or's illsolvency against hinlself and the filing of such petition ~~t;~'~ic.

shall be an act of insolvency.

No.5, 8.

40.

I 26.


Debtors' petitions may be in the following form Form of deU\.or'8 p··tition.

or to t e B:e e ect- h 1'1 ff To the CenLral Court of Papua..

lb., 8.41.

The Petitio~ of A.B.'

of showeth that your petitioner is unable to meet his engagement8 wilh his creditol'S.

Your petitioner therefore prays that he may be adjudicated insol v~nt.

and shall be ·signed by the petitioner and attested by some justice of the peace or oonlmissioner for affidavits or the registrar.

27 .

.
27 .

.

}'i petition for insolvency aga.inst a partnership Pdit:OllS ~Iy l11ay be presented by the Ina]' ority of the nlenlbers thereof parme~~hlP8.

.

• who at the time of presenting the petition are usually resident within the Territory.

lb., F. L. 28.

Wheil a debtor's petition shall have been Adjudication presented the court shall forthwith after such presenta- 011 petitIon.

tion proceed to adjudicate thereon and upon due proof lb., 8.

43. make adjudication of insolvency against the petitioner.
PART IV.--CREDITORS' PETITIONS.

29.

Any debtor liable to the provisions of this Acts of Ordinance who shall have committed any: of the following ~~~~~~e~~y.

acts shall be deemed to have comIllltted an act of insolvency and shall be liable to be adjudicated insolvent ri.p9n the petition of any creditor or creditors competent to present such petition that is to sSLy- (1.)
If the debtor has in the Territory or elsewhere nlacle a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally.

(2.)

If the debtor has in the Territory or elsewhere made a fraudulent conveyance gift delivery or transfer of his property or any part thereof.

(3.)
(3.)

If the debtor has with intent to defeat or delay his creditors done any of the following things namely-de Darted out of the Territory or being out of the Territory reJnained out of I nsoivency Ord~nance.

the Territory or departed frOlU his dwelling house or otherwise a.bsented hiIllself or begun to keep house.

If the debtor has filed in the prescribed lnanner a declaration admitting his inability to l)ay his debts.

(4.)

.

(7.)

(6.)

(5.)


If the debtor has presented a petition for adjudication of insolvency 'against hin1sel£ under Part III.

of this Ordinanoe.

If an execution issued against a debtor on any legal process for the purpose of obtaining payn1ent of not less than fifty pounds has been levied by seizure and the debtor has not bona fide satisfied such process by payment or othervvise within four days fr0111 such seizure .
If the debtor has after the presentation of a petition for adjudication of insolvency against hin1 paid given or delivered or caused to be paid given or delivered to the creditor or creditors presenting such petition m.oney or any satisfaction as security for his or their debt or debts or any part thereof whereby the petitioni:q.g creditor or creditors n1ay receive .

1110re in the pound than other creditors.

If the debtor has given or executed any fraudulent warrant of attorney or cognovit actionem.
If the creditor presenting the petition has served on the debtor in the prescribedn1anner a debtor's SUlnlllons requiring him to pay a .

SUIll due of an aIllount of not less than fifty pounds and the debtor has for such time' succeeding the service of the SUJ11n10nS as lnay be specified therein neglected to pay such sum or to secure or con1pound for the' sanle to the satisfaction of the creditor.
If' a debtor having against him the sentence judgn1ent or decree of any cOlnpeten~ court and' being thereunto required has faIled to satisfy the saIne or to point out to the off!.cer charged with the execution thereof suffiCIent .

disposable property to satisfy the S~lile.

; .

(9.)

(8.)

(10.)

i nsolvenoy O'l'dinanoe.

9 (11.)

If at any Ineeting of his creditors a debtor shall have consented to present a petition under Part III.
of this Ordinance and shall .not within "forty-eight hours fr01n the tilne of such consenting (or such further tim.e as may be rendered necessary by illness distance or other sufficient cause) have presented such petition. "

(12.)
(12.)

If at any ll1eeting of his creditors a debtor shall have achnittecl that he is unable to llleet his engagenlellts or" shall offer a com.position of less than twenty shillings in the pound in cash and having been requested by a 11lajority of the creditors present at such llleeting to present a petition under Part III.
of this Ordinance shall not within forty-eight hours after such request (or such further tilne as lllay be rendereclnecessary by illness distance or other sufficient cause) have presented such petition.

(13.)

If a debtor has given or 111acle any preference to or in favour of any creditor which if the debtor were adjudicated insolvent under this Ordinance would be "deemed a fraudulent preference of such creditor.

(14.)

If a debtor has been adjudged.


or declared bankrupt or insolvent in any British court out of the Territory having jurisdiction in bank ruptcy or insolvency or for the relief of insolvent debtors or has presented a petition to any such court praying adjudication of bankruptcy or insolvency against hiln8e1£.

.

.

.

d f h .

. "

d' d· .

h Id ' 30.


No person shall be adjudged an insolvent on any Act of d lIlso]vency o t e groun s In t east prece lng sectlon InentlOne must 1?e f h unless the act of insolvency on which the acljudiqation is ~:i~hi~t:i: grounded has occurred within six lTIonths before the months prior presentatlOll 0 t e petItIon lor a JU lCutlOn.

to presenta- tioI?- ?f petIhon.

Q.

38 Vic.

No.5, 8.45.

31.

(1.)


A single creditor if the debt due to hinl by a All!0}ln~ of debtor amounts to fifty pounds or upwards or two ~;;dl~~~~g .

creditors not being partners if the aggregate aJllount of d:bt.

debts due to them by a debtor amounts to seventy pounds 1 ., B.

46. or upwards or three or more creditors not being partners " .

.

i6 Insolvency Ordinance.


if the aggregate aIllOunt of debts due to thenl by a debtor aillounts to one hundred pounds or upwards lllay present a petition to the court praying that the debtor be adjudged an insolvent and alleging as the ground for such adjudication anyone or 1110re of the acts or defaults hereinbefore defined to be acts of insolvency.

(2.)

A.ny nUlllber of creditors in partnership shall for the purposes of this section be deenled to be a single creditor.
Nature of petitioning creditor'!!

debt.

Q.

38 Vic.

No.5, s. 47.

32.

The debt of the petitioning creditor nlust be a liquidated sunl due at law or in equity and subsisting as well at the tiIlle when the act of insolvency was C0111- 111itted as at the til1le of presenting the petitIon.
It nlust not be a secured debt unless the petitioner state in his petition that he win be ready to give up such security for the benefit of the creditors in the event· of the debtor being adjudicated an insolvent or unless the petitioner gives an estinlate of the value of hi::; security in which latter case he 111ay be adnlitted as n, petitioning creditor to the extent of the balance of the debt due to hinl after deducting the value so estilllated But in such case he shall on an application being Blade by the trustee within the prescribed tillle after the date of adjudication give up his security to such trustee for the benefit of the creditors upon paynlent of such estinlated value Provided that any· person who has given credit to a debtor for valuable consideration for any sunl payable at a certain tinle which tinle~had not elapsed when the act.
of insolvency was conl111itted 111ay petition or join in petitioning whether the tiIllefor payment has arrived at the date of presenting the petition or not.

33.

A debtor's SUlllnlons 11lay be granted by a judge I'L'cceedingil in relation to a of the Central Court on a creditor proving to his satis faction that a debt sufficient to support a petition in ~~~t:~~8.

insolvency is due to tlie creditor fr0111 the person against lb., 8.
48. whom the sunlnlons is sought and that the creditor has failed to obtain pay1uent of his debt after using reason able efforts to do so The summons shall be in the prescribed for1;1.1 resmubling as nearly as circunlstances adluit a Wrlt .'

.

issued by the Central Court It shall state that in the event of the debtor fallIng to pay the sum specified in the summons or to c01upound l!l\ ' , , "['.

>lj j 'Ilii I' .ll.j :ij (i I" 1" 'f; '1'1 ,-,-~'~----~' ~ ,.

Insolvenoy Ordi1ianoe.


11 for the sanle to the satisfaction of the creditor a petition 1nay be presented against hinl praying that he Inay be ad.iudged an insolvent .

The SUl1Ullons shall have an inclorselnent thereon to the like effect or such other prescribed indorseInent as nlay be best calculated to illdicate to the debtor the nature of the docu1nent served upon him and the con sequences of inattention to the requisitions therein 111ade.

34.
34.

Any debtor served with a debtor's sunlnlons Debtor may Inav apply to a judge of the Central Court in the pre- dfs~1.~:o scribed manner and within the 'prescribed tim.e to disnliss 8ummOl:S. such summons on the ground that he is not indebted to ~·o~~:';~49.
the creditor s~rving such slunmons or that he is not indebted to such a1110unt as will justify such creditor in presenting an insolvency petition against hi111 and such judge may dism.iss the SUnlITlOnS with or without costs if satisfied with the allegations made by the debtor or it may upon such security (if any) being given as may seenl just for payment to the creditor of the debt alleged by him to be due and the costs of establishing such debt stay all proceedings on the sumnl0ns for suc1?- time as will be required for the trial of the question relating to .
such debt.

Such trial shall be had either belore the Central Court or a judge thereof or some other court by law competent to try and determine quest.ions relating to debts of a like amount.

35.

Creditors' pet.itions for adjudication of insol- Form of vency may be in the form following or to the like cre~i~ors' effect- petItIOns.

lb., s. 50.

- To the Central Court.

of Papua.

The humble petition of A.B.

0'£ &c. Showeth that C.D.


of E. merohant [01' ClS the case 1nay be] is indebted to him in th-e sum of £ Tha.t your petitione.r is informed and believe-s that the said G.D. laLely and whilst 8:0 indebted tu your petitioner oommitted an aot af jnsolvenoy that is' to say [he1'e state act or acts of insolvency relied on].

Your petitioner therefore prays that the said O. D. may be adjudged insolvent.

36.
36.

In petitions the following short statements of Concise act.s of insolvency may be used and if such 01' the like ~~~!a~entll of statements are used they shall be sufficient- insolvency.

(1.)

Made a conveyance [or assignment] of his property for his lb., s. 51. c.reditors.

============= --=== - ,--- 12 I nsoZvency Ordinance.

(2.)

Made a fraudulent conveyance [or gift or delivery or transfer] of his property [or part of his property] to· wit to E.F.

(3.)
(3.)

With intent to defeat [ or delay] his creditors.

departed out of theJ Territory [or remained out of the Territory or &:c.].

(4.)

Filed a declaration of insolvency.

(5.)

Filed an insolvency petition.

(6.)

SuffeT,ed his.

property to be seiwd in execution for pounds [a~nd U1Jwards] and detained for four daYfl.

(7.)

Fraudulently preferred a; petitioning creditor to wit E.F.

(8.).

Gave a fraudulent warrant of attOl;ney [or cognovit actionem].

days to pay secure or compound a debt (9.)


Failed for fifty of £.

which he wa.~ required to pay by a debtor's summons.

(10.)

Fa.iled to sa,tisfy or point out property to satisfy an ea.:ecution.

(11.)

At a creditors' mooting consented to present an insolvency petition and failed to do· so for forty-eight hours.

without excuse.

(12.)


At a creditors' meeting admitted his insolvency [or offe.red a compotSition] and being requested by a majo~ity of creditorfl for to present an forty-eight hours without excuse.

insolvency petition failed to do so (13.)

Made a fraudulent preference of a creditor to wit E.F. (14) Was adjudged in the State or Victoria [or as the case 1nay be] or presented a peJtition in tlw State of Victoria [.or as the case may be J for adjudication of insolyency [or bankruptcy] against himself.
insolvent [or bal1JlcrUpt] V erifica tion.

Q.

38 Vic.

No.5, s. 52.

Verification of petition of corporations.

37.

Petitions lllust except as hereinafter provided be verified by the oath of the petitioner or petitioners.

vVhen the petitioning creditor is a body corporate or joint stock cOlnpany or company ~uthorised to sue in the nanle of a public officer the petition Inay be veri fied by the nlanager secretary or other authorised officer of such body corporate or cOlnpany.
Verification of petition of partnership.

Verification of petition of foreigners.

When the petitioning creditors are two or 1110re persons in partnership the petition l11ay.

be verified by one only of the partners .

When the petitioning creditor is out of the Territory the petition nlay be verified.

by his attorney or agent within the Territory duly authorised in that behalf.

Signature of petition.

lb., s. 53.

38.


The petition shall be signed by the petitioner or some person by this Ordinance authorised to verify the same.

.

Form of verification.

lb.., 8.

54.

39.

The verification shall be by affidavit in the forln following or to the like effect and annexed to or sub· scribed to the petition- I X.Y.

of .

&c. make oath and say that the statements in the above [or the annexed] petition are to the best of my bel'ief true in substance and in fact.

I nsolvenoy Ordinanoe.


13 And'such affidavit shall be sufficient prima faoie evidence to support the petition.

40.

Whenever a petition is verified by any person Authority to other than the petitioner or one of the petitioners such ~~~i:i~~ to be person shall in addition to verifying the sa.me show also verified .. in his affidavit.

accompanying the petition that he is ito~~ ~~c55.

authorised under this Ordinance to verify the petition. '

41.
41.

Every petition under this part of the Ordinance Petitionsmusb shall be served upon the debtor.

~.,s:~~~~.

42.

The copy of the petition served shall have Indors.e~ent indorsed thereon a summons in the form following or r~r ~:~~V~:.s to the like effect-.

'110 the within-namec1 C.D.

lb., s. 57.


You are hereby requirHl tv enter an appearance to the witlJln petition at the Central Court Office Port Moresby within clays from the service hereof on you exclusive of the clay of service otherwise you will be aclj lldicatecl ins 01 vent.

which summons shall be signed by the registrar and sealed with the seal of his office.

·43.

Service of petitions under this part of the Mod.e of Ordinance may be effected eit~erpersonally or in such ;~~~~e58.
other manner as may be prescrIbed or as the court upon the application of the petitioner may direct.

44.

If at the expiration of four days after the day Proceedings of service or such further time as may be prescribed or ~p~~arance­ as the court may think necessary to enable the debtor entered.
to appear the debtor shall not have entered an appearance lb., s. 59. to the petition at the place appoint.ed by the summons the Central Court or a judge thereof may proceed at any .tinle thereafter upon due proof of service to adjudicate the debtor insolvent.

.

No fee shall be demanded of a debtor for entering No fee for .

appearance.

an appearance to a p~tition.

set down for hearing in chambers before a .iudge.

~ 45.

If the debtor shall appear the petition shall be Proceedings ~~pearance.
lb., s. 61.

46.

Any debtor intending to show cause against AtlidavitB any petition may file any affidavit or affidavits intended showing causa may be filed.

y 1m or t at purpose In t e regIS ry.

to e use b lb., s. 62. d b h · .

t h h' f .

r~~~~~~~~O"~'~~ .1 ~ ~ 14 Proceedings at hearing of petition.

Q.

38 Vic.

No.5, s. 63.

Proc(edings if debt of peLitioning creditor contested.

Ib., s. 64.

Insolvency Ordinance.

47.
When the debtor appears the court at the hearing of the petition shall require proof of the debt of the petitioning creditor and of the act of insolvency or if 1110re than one act of insolvency is alleged in the petition of S0111e one of the alleged acts of insolvency and if satisfied with such proof shall adjudge the debtor to be insolvent The court Inay adjourn the petition either con ditionally or unconditionally for the procurement of, further evidence or for any other just cause or may disl11iss the petition with or without costs as the court thinks just.
48.
'''VIlere the debtor appears on the petition and denies that he is indebted to the petitioner or that he is indebted to such alTIOunt as would justify the petitioner in presenting an insolvency petition against hinl the court upon such security (if any) being given as the court Inay require for paylnent to the petitioner of any debt which Inay be established against hiIn in due course of law and of the costs of establishing such debt lnay stay all pro ceedings on the petition for such tinle as nlay be required for trial of the question relating to such debt and such trial shall be had in nlanner hereinbefore provided with resp~ct to disputed debts under debtors) sunnnonses.
Where proceedings stayed court may adjudge debtor insolvent on petition of another creditor.

Ib., s. 65. .

49.

V{here proceedings are stayed under the last ~ preceding section the court nlay if by reason of the delay caused by such stay of proceedings or for any other cause it thinks just adjudge the debtor an- insolvent on the petition of SOllle other creditor and shaH thereupon dis- .

lniss upon such ternlS as it thinks just the petition pro ceedings in which have bee'n stayed as aforesaid.

.

50.
.

50.

If any debtor after the presentation of a. petition On payment for adjudication ?~ i~ls01veno~ against.

hin1 sha~l pay ~ ~~t~i~~i~;o l:~~i;~~!rle nloney to tbhe p'etItIolllndgl~redldtor or.

gIve or d?lflvetr.

or forfeit his debt procure to e gIven or e Ivere to hlln any sat.Is ac 1011 :!~t~:: it to or security for his debt whereby such petitioning creditor Ib;, s. 66.

.. Inay receive 11101'e in the pound in respect of his debt tha?

.
.

the~ other creditors such petitioning creditor shall forfeIt ~ his whole debt and shall also repay or deliver up such Inoney or satisfaction or security or the full value thereof .. .

, to the trustee.

Insolvency Ordinance. "

'i' 15 f 11 - 51.

The petitioning creditor shall defray the costs Peti~ioning t'l credItor to d· · 1 d an expenses 0 a procee lngs In t 16 lnso vency un I _pay ct>s~s of and inclusive of the order of adjudication and such costs procee~~ngB.
f i ' an - expenses aVlng een e repalc to No.

0, s. 67. him out of the first moneys that shall be received from the estate of the insolvent: rst taxed s a h 11 b Q.

38 V lC.

.

I b d h 1· .

.

52.

Any creditor of a partnership lnay in like Pet~tions mal}ner as aforesa;id present a petition for adjudication ~~~~~~;ships.
of lllsolvency agaInst all or anyone or n101'e of nlembers of the partnership if any of the partners has committed an act of insolvency in respect of the estate of the partnership the lb., s. 68.
And every order of adjudication lllade thereon shall be valid although-tit do not include all the partners And after such order is made the l,ikeproceeclings shall be had and taken thereon and concerning such estate and such partner or partners as are herein provided to be had and taken concerning other estates a.nd persons.
But nothing herein contained _ shall extend or be construed to prevent any creditor of any partnership from proceeding against any -partner or the separate estate of any partner thereof in respect of debts due by the partnership in the same way as he nlight pr<?ceed against.

him in respect of debts due by such partner in his individual capacity.

-General Provisions .

.

53.

Every order of adjudication made under Parts Time for III.

and IV.
and IV.

of the Ordinance shall specify a time and dteht·very °tf f s a emen 0 place at which the de tor IS to come in- an c elver to debts &c. to the trustee a full· true and accurate statement verified ~~s:~e69.

on oath of his debts and liabilities of every kind and - of the names and residences so far as known of his creditors and of the causes of his inability to meet' his engagements.

d I l' b . '

54.

(1.)


A copy of the order of the cotlrt adjudging Advertise the debtor to be insolvent shall be published in the ment of Gazette and be advertised locally in such manner (if any) ~d~~di~~tion .. as nlay be prescribed and the date of such order shall lb., 8.70. be the date of the adjlldication for the purposes of this Ordinance .

16 Order oonclusive evidence.

Insolvency Ordinance.

- (2.)


The production of a copy of the Gazette con- taining such order as aforesaid shall be conclusive evidence in all legal proceedings of the debtor having been duly adjudged an insolvent and of the date of the adjudication so that it shall not be necessary in any such proceedings to prove any petitioning creditor's debt or act of insolvency in order to support the adjudication.

The oourt may cause absconding de.btors to be arrested.

Q.

38 Vic.

No.5, s. 71.

I I .


I Preserving right of the debtor to apply to _ dismis'J the summons.

Discharge of the debtor.

Absconding Debto1·s.

55.

(1.)
If after a debtor's summons has been granted and before a petition for -adjudication of insol veney is presented against the debtor it appears to the court that there is probable reason for believing that the debtor is about to leave the Territory or to quit his place of residence with a view of avoiding payment of the debt for which the SU111nlOnS has been granted or of avoiding service of a petition of insolvency or of avoiding appearing to such petition or of avoiding examination in respect of his affairs or otherwise avoiding delaying or enlbarrassing proceedings in insolvency the court may by warrant addressed to any constable or prescribed officer of the court cause the debtor to be arrested and safely kept as prescribed until such tirrle as the court Inayorder .
(2. )

Nothing in this section contained shall be con strued to a.lter or qualify the right of the debtor to apply to the court in the prescribed manner to dismiss the SU111lnOnS or to pay secure or conlpound for the debt within the tiIne in this Ordinance provided without being deenled to have cOl1nnitted an a.ct of insolvency (3.)

Upon any such paylnent or composition -being - Inade or such security offered as the court thinks reason- .
able the debtor shall be discharged out of custody unless t.he court otherwise order' What arrests are valid.

(4.)

No arrest under this sectio!

'l shall be valid unless .

the debtor be served with the debtor's SUlnnl011S before or at the tilne of his arrest Payment or security for debt after arrest.

(5.)

No paynlent or C0111position of a debt Inade or .


-security for the SaIne given after an arrest nlade und~r this section shall be eXeInpted fr01n the provisio]fs of thIS Ordinance relating to fraudulent preferences!

.

1 ' • • Insolvency Ordinance-.

17 56.

The court may by warrant addressed to any Arrest of constable or prescribed officer of the court .cause a insdolvent debtor to be arrested and any book~ papers moneys circum- d stances gooe s .

an cae s In IS possesSIon to e SeIze an Q.

38 Vic.
38 Vic.

hiln and theln to be safely kept as prescribed until such No.5, s. 72. tinle as the court may order under the following CirCU111- stances- ' .

b ' d , .

h' d h tt 1 .

un er car a1D 1 t - (1.)

If after a petition of insolvency is presented against such debtor it appear to the court that there is probable reason for believing that he is about to leave the Territory or to quit his place of residence with a view of avoiding service of the petition or of avoiding appearing to.
the' 'petition 01' of avoiding examination in respect of his affairs or other wise delaying or embarrassing the proceedings in insolvency.

(2.)
If after a petition in insolvency has been presented against such debtor it appear to the court that there is probable cause for believing that he is about to rel1l0Ve his goods or chattels with a view of preventing or delaying such goods or chattels being taken possession of by the 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 chattels or any books documents or writings which might be of use to his creditors in the course of his insolvency.
(3.)

If after the service of the p~tition on such debtor or after an adjudication in insolvency against him he remove any goods or chattels in his possession above the value of five , pounds without the leave of the trustee or if without good cause shown he fails to attend any examination ordered, by the court.

57.

(1.)

The cQurt may before adjudication summon Power to to attend before itself or (in any place other than within :if:es~~s the Central Division of the Territory) before any lnagis- bd~o~J.
t' trate the debtor or any 'person whom it may think ~:,u/~;.lOn.

capable of giving any information concerning any act of insolvency committed by the debtor and may require any person so sunlmoned to produce any books or docu-.

ments in his possession or power.

, II =--============~ ==--=======---~- 18 Insolvency Ordinance.

(2.)
The examining magistrate nlay examine such person and if such person being so sUlllmoned shall without reasonable excuse refuse or neglect to attend the exalllining magistrate nlay order by warrant such person to be arrested and brought before hinl for exalnination and nlay order the seizure of all or any of the books or doculnents which such person lllay have been ordered to produce and may also punish such person so refusing or neglecting to appear by fine not exceeding OlJ-e hundred pounds or inlprisonlnent not exceeding six lllonths or both as in his discretion such exalnining magistrate lnay thin~{ fit.
P ART V.-CONSEQUENCES OF ADJUDICATION-CUSTODY AND VESTING OF PROPER'l'Y.

58.

(1.)
The insolvency of a debtor whether the adjudication is lllade upon his own or a creditor's petition shall subject to the provisions of subsection (2) of this section be -deelned to have relation back to and to commence at the, tinle of the act of insolvency being completed on which the order is made adjudging him to be insolvent or if the insolvent is proved to have com nlitted more acts of insolvency than one to have relation back to and to commence at the time of the first of the acts of insolvency that lnay be proved to have been C01n Initted by the insolvent within.
six months next pre ceding the presentation of· the petition whereon the adjudication is founded (2.)

The insolvency shall not relate to any such prior .

act of insolvency unless it be proved that at the tinle of· committing such prior act the insolvent was indebted to some creditor or creditors in a sum or sums sufficient to support a petition in insolvency and that suoh debt ~r debts are still remaining due at the tiIne of the adjudI cation.

59.

(1.)
59.

(1.)

Where a debtor shall be adjudicated an insolvent no creditor to whom the insolvent is indebted in respect of any debt provable in the insolvency shall have any renledy against the property or person of the insolvent in respect of such debt except in lnanner directed by this Ordinance (2.)

This section shall not affect the power of any creditor holding a ·sec-urity upon the property of the Definition of commence ment of insolvency.

Q.

38 Vic.

No.6, 1.'.

74.

Creditors bound by insol vency.


lb., B.

75.

I __ CC~CC~ __ ~ __ ~ __ -~-~--~' _~c~· __ - __ .C •• __ ··-·_~'·~~··_~_C __ ~C_.

~-- ! '

Insolvency (Jrdinance.

19 insolvent to realise or otherwise deal with such security in the same manner as he would have been entitled to realise or deal with the same if this section had not been passed.

1 d d 60.

Any person who shall be in custody of the sheriff Di.soharge of .
ffi d ' pnsoner for or 0 any gao er or 0 cer un er mesne process or In debt or on f execution on any judgnlent decree or order for any debt ?ne.me p~ocesg.

1 Q.

38 VIC.

or eman prova e In Inso vency s a upon a JU lOa IOn No.5, s. 76. of insolvency being made against him be entitled to apply to the court for and obtain an order discharging him out of custody in respect thereot either absolutely or on such terms as the cour~ maY.think fit to impose and shall be discharged accordIngly.

d' d' h 11 t' bl " .


- 61.

The court may at any time after the presentation Power of of an insolven~y p~tition ag~inst ~he deb~or restrain ~~~!

!n~~:i~n further proceedIngs III any actIOn Slut executIon or other of pet!tion.

to d bt restr3.ll1 SUItS h .


db" ega process agaInst t e e tor In respect o' any e 1 1 &c. provable in insolvency or it nlay allow such proceedings lb., s. 77. whether in progress at the COlnmencement of the insol- vency or commenced during its continuance to proceed upon such terms as the court may think just t .
The court may also at any tiIne after the presentation of such petition appoint a receiver or manager of the property or business of the debtor against whOln the petition is presented or of any part thereof and may direct immediate possession to be taken of such property or business or any part thereof Applications under this section may be made ex parte.

• 62.

The Lieutenant-Governor may appoint an Official official trustee and in case the official trustee shall die tcrustee.
om pare or leave the TerrItory or be removed frOln hIs office may (l 38 Vic.

appoint another person to be official trustee in his room No.5, s. 78. who shall thereupon succeed.

to all the rights powers duties and liabilities of his predecessor and in whom shall vest by vir~ue of his appointment without any con veyance or assignment for that purpose all the property vested in his predecessor as official trustee.

• .

63.
• .

63.

The official trustee shall before entering on his Security to duties if required by the Lieutenant-Governor give such ~ffi~ii:let~t~!tee.

security by bond .for the due performance thereof as the q.. 38 Vic.

.

court ~liali direct, ~o.

5, s. 79.

======----- 20 Insolvency Qrdinance.

64.

(1.)


The official trustee shall pay- into the Official trustee !~v~~~!ni~e public revenue of the Territory a sunl at the rate of ~~~~e:o\i::ter1 five pounds for every hundred pounds that shall C01ne to his hands as such trustee as the proceeds of property by him.

realized or debts coHected by hinl while acting as such trustee Q.

38 Vic.

No.5, s. 80.

(2.)


Such percentage shall not be chargeable upon any llloneys that shall C0111e to his hands by devolution froin any elected trustee that nlay have preceded hiIn in his office.

.

65.

I111Inediately upon the presentation of a petition Officialtrustee ~~::e~:ion on for adjudication under Part III.

of this Ordinance the ~:~i~i~~ -being official trustee shall take or cause to be taken possession of all the property of the petitioner wherever situate presented.
and shall retain the saJne in his possession and custody g~~:';i:.

No.5, s. 82. until adjudication of insolvency has been Illade or the petition has been dislllissed.

Order for the election of trustee.

• Ib., s. 83.

66.

Every order adjudging a debtor insolvent shall appoint sonle day not earlier ~han six days nor later than thirty days f1'0111 the date of the order for holding -a .

- general Ineeting of his creditors for the election of a trustee.

Official trustee to act until trustee is elected.


Compare Ib., s. 84.

67.

Until a trus.tee is elected by the creditors the official trustee shall be the trustee for the purposes of this Ordinance and iinmediately upon the order of adjudication being Inade the property of the, insolvent shall forthwith pass to and vest in him and shall con tinue to be vested in hiln unless and until a trustee is elected as aforesaid.

Power and dutY of trustee.

lb., B.

85.

68.


The offLCial trustee shall upon his appointInent take or cause to be taken possession of the property of the insolvent and shall cause such of the saIne as is of a perishable nature to be sold .and shall preserve the residue thereof until after the time for the election of a trustee as herein provided shall_ have elapsed.

69.

When an order has been made adjudging a Property of i~s<?lyent how debtor insolvent the property of the insolvent shall ~~:B:.b~~.

.
.

beconle divisible amongst his 'cre~litors in proportion to the debts proved by thein in the Insoh;-en9Y,· .

. '

.

·.-.1 :'- "L ____ 1 nsotvency Ordinanoe.

21 i 1 , , 70.

The property of the insolvent divisible amongst De.scriptions his creditors 'and in this Ordinance referred to as the of lDsolvent's property property of the insolvent shall not comprise the following divisible amongst partICulars :- creditors.

(1.)

Property held by the insolvent on trust for Q.

38 Vic.

No.5, s. 87, altered.


any other person.

• , (2.)

The tools (if any) of his trade and the neces- sary wearing apparel and bedding of himself his wife and children to a value inclusive of tools and apparel and bedding not exceeding twenty pounds in the whole.

(3.)

The property and interest of t~?


insolvent in a policy of insurance on his own life' so far as the same are protected 'by the provisions of any enactment for the time being in force relating to the protection of life insurances and other like provident arrange111ents.

But it shall comprise the following particulars- (4.)

All such property as may belong to or be vested in the insolvent at the COlunlencement of the insolvency or may be aequired by or devolve on him during its continuance.

(5.)
(5.)

The capacity to exercise and to take pro ceedings for exercising all such powers in or over or in respect of property as luight -have been exercised by the insolvent for his own benefit at the comnwnCeIuent of his insolvency or during its continuance.

(6.)
All goods and chattels being at the COlU luencenlent of the insolvency in the possession order or dispositio!l of the insolvent by the consent and penuission of the true owner of which· goods and chattels the insolvent is reputed owner or of which he has taken upon himself the sale or dispositi9n as owner Provided that things in action other than debts due to him in the course of his trade or business shall' not be deerrwd goods and chattels within the meaning of this section Provided also that nothing in this section contained shall affect the_ validity of any preferable lien on wool or Cl'OpS or mortgage of sheep or cattle under H The Mercantile 22 i nsoivency Ordinance.
Act of 1867 (Queensland Adopted)" or any Ordinance aInending the saIlle or substituted therefor or affect the validity of any.duly registered bill of sale.

Certain actions may be continued by insolvent.

Q.

38 Vic.

No.5, I).

88. i · 71.


Notwithstanding anything herein contained an insolvent Illay continue in his own nanle and for his own benefit any action conlInenced by hhn before adjudi cation for any personal injury or wrong done to hhnself or to any of his faIllily But the whole or any part of the sunl recovered in any such action before the close of the insolvency shall if the court so order be paid over by the insolvent to the trustee.

.

• h 72.
.

• h 72.

The general Ineeting of creditors for the election General ::~~~~~i!°lor of a trustee shall be held at the registry or sonle con the el€Ction of venient place near thereto Notice of such nleeting shall d h .

b f a trustee.
b f a trustee.

t e be gIven In t e pl'escrl ed orm In the Gazette an lb., s. 89. presCl~ibed newspapers or such newspapers (if any) as the court shall· direct in each case and by affixing a copy thereof in SOlne conspicuous place in the registry and the post office nearest to tli"e place where the debtor carried on business or resided at the date of presenting the petition.

. '

.

73.

Any creditor desiring to vote at such Ineeting Creditors must prove.
nlust first nlake prelilninary proof that a debt provable Mode of proof.
under the insolvency is due to hiln Such proof may be Inade by affidavit in the prescribed fOrln before the Ib., s. 90. registrar or any Inagistrate comInissioner for affidavits or justice of the peace who for such purpose shall have authority to adIninister oaths and who upon such proof being Inade to his satisfaction shall if required deliver a certificate thereof to the creditor in the fOrIn following or to· the like effect- In the insolvent estate of A.B.

Certificate of C.D.
Certificate of C.D.

has proved before me a debt of£ proof.

Dated at in this esta teo E.F. [R.M.

or &c.] Mode of transmitting certificate.

lb., s. 91.

74.

Every such certificate shal1 be filed in the registry.

And every such certificate shall entitle the creditor nanled therein to vote at such general Ineeting as a creditor in respect of a debt of the amount stated .

in the certifipate.

. '

'i 1 , , I I I 1 : , , .

I I I I !

.

j : I :1 insolvency Ordinance.

23 75.


The oreditors assembled at suoh ~enera.l meeting Procee~ings (hereinafter oalled the first Ineeting of creditors) shall ~ ~;;;~~~.

and Inay do as follows- No.5, 8.

92.

(1.)


They may by resolution appoint some fit person resident in the Territory whether a oreditor or not to fill the offioe of trustee of the property of insolvent at such the remuneration as they may frOln tiIne to time detennine (Hany) or they 'may resolve to leave his appoiutnlent to the comlllittee of inspeotion hereinafter mentioned.

(2.)
(2.)

They shall when they appoint a trustee by resolution deolare what security (if any) is to be given and to whom by the person so appointed before he enters on the offioe of trustee.

(3.)
(3.)

They may by resolution appoint some other fit person or persons not exoeeding five in nUID.per and being or editors qualified .to vote at sRoh first nleeting of oreditors or authorised in the presoribed form by oreditors so qualifiE~d to vote to form a oommittee of inspeotion for the purpose of superintending the adminis the insolvent's tration by the trustee of property.

(4.)
(4.)

They may by resolution give direotions as to the manner jn whioh the property is to be administered by the trustee and it shall be the duty of the trustee to oonform_ to' suoh direotions unless the oourt for some just oause otherwise orders.

76.
76.

The first meeting of oreditors shall be held in Furt~~r the presoribed manner and subjeot to the presoribed r:fivr~~ons 0,5 regulations as to the quorum adjournment of Ineeting med~~ng of and all other matters relating to the conduot of the ;~~, ~.o~;: Ineeting or the prooeedings thereat .

Provided that (1.)

The meeting shall be presided over by the registrar or in- the event of his being unable to attend through illness or any unavoidable cause by suoh' ohairman as the meeting may elect.
2-t j nsoivenoy ord';'nance.

(3.)

(4.)

(2.)

A person sp.all not be entitled to vote as a creditor unl~ss at or previously to the meeting he has in lnanner hereinbefore prescribed proved a debt provable u}.

'!der the insolven(iy to be due to hiln .. No creditor shall vote in respect of any unliquidated or contingent debt or any debt the value of which is not ascertained.
A secured creditor shall for the purpose of voting be deeIned to be a creditor only in respect of the balance (if any) due to hilll after deducting the value of his security and the alnount of such balance shall until the security be realised be deternlined in the p're scribed lnanner He lnay however at or pre viously to the 111eeting of creditors give up the security to the trustee and thereupon he shall rank as a creditor in respect of the whole sunl due to hinl.
Votes l11ay be given either personally or by proxy.

An ordinary resolution shall be decided by a l11ajority in value of the creditors present persona.lly or by proxy at the 111eeting and voting on such resolution.

A special resolution shall be decided by a l11ajority in nU111ber and three-fourths in value of the creditors present personally or by proxy at the nleeting and voting on such resolution.

(6.)

(5.)

, (7.)

77.

The appoint11lent of a trustee shall be reported Evidence of appointment .
to the court and the court upon being satisfied that the of trustee.

requisite security (if any) has been entered into by hiI11 Q.

38 Vic.

shall give a certificate declaring hiI11 to be trustee of No.5, 8.
94. the insolvency na11led in the certificate and such certifi cate shall be' conclusive evidence of the appointl11ent of the trustee and such appointment shall dat.e from the date of .the certificate ° When the official trustee holds the office of trustee or when t.l;e trustee is changed a like certificate of the court lnay be nlade declaring the person therein nanled to be trustee and such certificate shall be conclusive evidence of- the person therein named being trustee.

- - - __ -_0 __ .
- - - __ -_0 __ .

o_~ __ • __ ~-~-~~=_-_~_~~~ I I 1 '! '

Insolvency Ord~nance.

f t f d' t · 78.

The registrar or other chairman Inay adjourn Meeting may t' be adjourned.

th fi e rs mee Ing 0 ere ltors rmn Ime to tlme an place to place subject to the directions of the court.

rom Q.

38 Vic.

No.5, s. 95.

19.

On the appointInent of a trustee as aforesaid ProP!3rty to .

I ' f h ' 1 b d' d vest III trustee lveste when elected.
t e property 0 t 1e lnso vent shall ort WIt 1 e h fr01n the official trustee and pass to and be vested in the lb., s. 96. trustee so appointed. '

f 1 d f .

80.

The expression "trustee" when used in this Meaning of Ordinance shall include the person for the tilne being ~btltlst;:-" filling the office of trustee ""hether he be the official .

trustee or not.

., s. .

.

, (.

C Sl.


If the proof of any creditor or creditors who has Appointment or have voted at the election of a trustee and without ?f new tr~lstee If votes gIVen whose vote or votes the trustee would not have been improperly.

elected shall afterwards be expunged or reduced the lb., s. !J8.
court nlay at any tim.e upon the application of a majority in value of the creditors who have proved order a fresh lneeting to be held, for the election of a new trustee in lieu of the one originally appointed which meeting shall be sunlnloned and held at such place as the court shall think fit and in the sanle 111anner as nearly as lnay be as the first lneeting of creditors and if a new trustee is elected at such nleeting the court 'shall give him a certificate declaring hinl to be such trustee.'

82.
82.

The court Inay at any tinle upon sufficient cause Oourt may.

shown order a lneeting for the election of anew trustee to f~~~le~~i~!1~1 be held at such time and place and in such manner as new trustee.

shall to it seeln f i t . '

.

lb., s. 99.

83.

(1.)

No trustee appointed under this Ordinance Indemnityto 'sl!all be nlade personally liable ~Y ~'~as~n onl~ that any ~~~~~~e~oo.
of t.he Inatters upon wInch an adJudICatIon of Insolvency has been founded is insufficient to support such adjudi- cation or in respect of any receipt by hirD.

in his official capacity of any nloney or negotiable, instrunlents if he shall have dealt with the sanle as directed by the court or required by this Ordinance or any order 111ade in pursuance thereof - , (2.)
If any action is brought against a.ny trustee und'er this Ordinance in respect of such n10ney or negotiable instrulnents any judge of the Central Court may upon proof thereof stay or set aside the proceedings in any such action so far as the trustee is concerned and make such order as to costs as he shall think fit.

26 j nsoiveiwy Ordinance.

d' -, .

I' k fi (1) TI • A s to Trustees and Committee of Inspection.

84.
84.

The following provisions shall extend and apply le· cre ltors 111ay 1 Provisions all to f rusteeB l t d .

f .

.

a,ndcommittee to t le trus ee an conlnuttee 0 lnspectlon- 'f I of inspection.

.

t appOInt t ley t nIl Q.

38 Vic.

. '

.

n10re persons.

than one to the office of trustee No.5, B.


1.01. and where n10re than one are appointed they shall declare whether any act required .or authorised to be done by thE1 trustee is to be done by all or anyone or n10re of such persons but all such persons are in this Ordinance included under the tenn "trustee" and shall be joint tenants of the property of the insol vent The creditors lnayalso appoint persons to act as trustees in succession in the event of one or 1110re of the persons first .
na1ned declining to accept the office of trustee.

(2.)

If any vacancy occur in the office of trustee by death resignation or otherwise the creditors in generalll1eeting shall fill up such vacancy and a general 1neeting.

for the purpose of fillinf up such 'vacancy 111ay be convened by the continuing trustee if there be 1110re than one or by the registrar on the requisition of any creditor.

(5.)

(4.)

(3.)
(5.)

(4.)

(3.)

If through any cause whatever there is no trustee acting during the continuance of an insolvency the official trustee shall be and act as such trustee.

The court l11ay upon cause sho'wn suspend or reIllOVe any trustee.

The creditors may by special resolution at a lneeting specially called for that purpose of which the prescribed notice has been given remove the trustee and appoint another person to fill his office and the court shall give a certificate declaring hin1 to be the trustee.
If a trustee be adjudged insolvent or be or becOIlle resident out of the Territory he sha~l cease to be trustee and the registrar shall If there be no other trustee call a meeting of creditors for the appointInent of another trustee in his place.'

(6.)

.

. "

~.

I nsolvenoy O'rdinanoe.

. "

27 (7.)

The property of the insolvent shall pass fronl trustee to trustee and shall vest in the trustee for the tilne being during his continuance in office without any conveyance assignnlent or transfer whatever.
.

(8.)

The trustee of an insolvent nlay· sue and be sued by the official name of "the trustee of an insolvent" the property of inserting the nalne of the insolvent and by that nalne may hold property of· every description make contracts sue and be sued enter into any engagements binding upon hinlself and his successors in office and do all other acts necessary· or expedient to be done in the execution of his office.

(9.)
(9.)

The certificate of appointInent of a trustee shall for all purposes of any law in force in the Territory requiring registration enrol ment or recording of conveyances or assign ments of.

property be cleeIned to be a conveyance or assignment of property and Inay be registered enrolled 'and recorded accordingly.

(10.)

Any member of the COn1111ittee of inspection may resign his office by notice in writing signed by him and delivered to the trustee.

(11.)
(11.)

The creditors may by resolution fix the quorum required to be present at a meeting of the committ.ee of inspection.

(12.)

Any nlember of the committee of inspection may be reInoved by a special resolution at any Ineeting of creditors of which the prescribed notice has been given stating the object of the meeting.

(13.)
(13.)

On any vacancy occurring in the office of a member of the committee of inspection by removal death resignation or otherwise the trustee shall convene a nleeting of creditors for the purpose of filling up such vacancy.

(14.)

The continuing members of the conlmittee of inspection may act notwithstanding any vacancy in their body and where the number of members of the comnlittee of inspection is 28 j nsolvenoy Ord~nance.
for the tin1e being less than five the creditors lllay increase that nUlllber so that it do not ex.ceed five.

(15.)

No defect or irregularity in the election of a trustee or of a llleIllber of the cOlllnlittee of inspection shall vitiate any act bona fide done by hin1 and no act or proceeding of the trustee or of the creditors shall be invalid by reason of any failure of the creditors to elect all or any llleIllbers of the conllnittee of inspection.

(16.)
(16.)

If a llleIllber of the CO}l1l11ittee of inspectiOli becOllle an insolvent or cease to reside in, the Territory his office shall thereupon beconle vacant.

(17.)

Where there is no conlnlittee of inspection any act or thing or any direction or consent by this Ordinance authorised or required to be done or given by such conlnlittee lllay be done or given by the court' on the application of the trustee.

(18.)
(18.)

The court lllay at any tinle lllake an order or the creditors lllay at any tillle pass a special resolution declaring that all or any of the things by this Ordinance authorised to be done by the trustee with the consent of the conllllittee of inspection lllay be done by the t.rustee without such consent And upon such order or resolution being lllade or this Ordinance passed relating to the C0l11111ittee of inspection shall as to the things so authorised cease to apply.
the proyisions of A s to P1'Ope?-ty devolving on Trustee.

85.

(1.)

'\There the property of any person has been Proceeds of sale seizure of taken in execution in respect of a sunl of not less than ~~o:;·Vic.

fifty pounds and sold the sheriff or bailiff or other officer No.5, s. 102. of the Central Court or Snlall Debts Court as the caSfl .
lllay be shall retain the proceeds of such sale in his hands for a period of fourteen days and upon notice being served on hinl within that period of an insolvency petition having been presented against such person shall hold -the proceeds of such sale after deducting as much thereof I nsol1Jency Ordinance, 29 , , i as shall be sufficient to defray the costs and expenses of the execution creditor on trust to pay the same to the trustee (2,) If no notice of such petition having been presented be served on hiln within such period of fourteen days or if such notice having been served the person against whonl the petition has been presented is not adjudged an insolvent on such petition or on any other petition of which the sheriff bailiff or other officer has notice he nlay deal with the proceeds of such sale in the Salne Inanner as he would have clone had no notide of the presentation of an insolvency petition been served on hiln .. ~ · h h 1: 1 d 86.
Where an insolvent is or has been an officer or Appropriation "1 of portion of 1 k C er or ot erWIse emp oye or engagec In t e ClVI pay of officers service of the ~rown or is in the enjoyment of 3:ny pension ~.

c;;~~~~s.
c;;~~~~s.

or compensatlOn whatever granted by OrdInance the :No.5, s. 103. trustee during the insolvency and the registrar after the close of the insolvency shall receive for distribution amongst the creditors so mlJ-ch of the insolvent's salary emolument or pension as the couttupon the application of the trustee thinks just and reasonable to be paid in .

such lnanner and at such times as the cOUrt with the consent in writing of the Lieutenant-Governor directs.

.
.

81. vVhere an insolvent is in the receipt of a salary Appropriation , • c; or income other than as aforesaid the C011l't upon the of portion of salary to .

apphcatlOn of the trustee shall fronl tlme to tIme lnake creditol'~.

such order as it thinks just for the payment of such salary lb., s. 104. or income or of any part thereof to the trustee during the insolvency and to the registrar if necessary after the close of the insolvency to be applied by him in such manner as the court may direct.

.
.

• • ~ 88.
Every conveyance assignment gift delivery or Conveyances ~ transfer of any prope!~y and ,every dealing with property ~r~ ~~~!c~ which would under thIS OrdInance be deerned an act of insolvency insolvency sh,a11 be, and are hereby declared to be r~~;t:!.ainst absolutely VOId agaInst the trustee of the insolvent lb., s. 105. appointecl under this Ordinance Provided that in the case of a conveyance or assign- Except ment of all the debtor s property for the benefit of all to truste.es for h' d' suc proper y an a acts of 9, debtor the creditors IS cre ltorsa ea Ings WI 'th' h conveyances d 11 11 d I' t , ~ I ' t; • i I , , i i , !
1 : Ii i .

I • !, 30 Insolvency Ordinance.
and things bona fide Illade or done by the trustee of such conveyance or assignIllent shall be valid and not affected by the adjudication unless such trustee had- before or at the time of any such dealings acts or things notice that proceedings had been taken or were about to be taken for the purpose of obtaining adjudication of insolvency against the debtor Provided further that in the case of an execl1tion and executions levied by seizure and sale the proceeds whereof have been ~~~~:!d witho~~ notice lawfully paid over under the provisions of this Ordinance .
h h of petitIon.

to t e person at w 10~e snIt t e executIOn was Issue suc payIllent shall be valid- and the person receiving the - saIne shall not be affected by the adjudication unless at' the tinle of paylnent to hinl he had notice that a petition for adjudication had been presented against the debtor.

1 h d .

.

- Avoidance of voluntary settlements.

Q.

38 Vic.

No.5, s. lOG.

n 89.

(1.)


Any settleIllent of property Illade by any l)erson not being a settleIllent Illade before and in con sideration of 'Illarriage or Illade in favor of a purchaser or incuIllbrancer in good faith and for valuable considera- tion or a settlement nlade on or for the -wife or children of the settlor of property which has accrued to the settlor after Illarriage in right of his wife shall if the.
settlor beconles insolvent within two years after the date of such settleIllent be void as against the trustee of the insolvent appointed under this Ordinance and shall also be void as against such trustee _ if the settlor beconles insolvent at any subsequent t.iIlle within three years after the date of such settlement unless the parties clainling under such settleIllent can prove that the.
settlor was at the tilne of nlaking the settlelnent· able to pay all his debts without the aid of the property cOlnprised in such settlmnent (2.)

Any covenant or contract Illade by any person in consideration of Inarriage for the future settlelnent.
upon or for his wife or children of any money or property wherein he had not at the date of his marriage any estate or interest whether vested or contingent in possession or \ relllainder and not being llloney or property of or in right of his vv,ife shall upon his becOlning insolvent before suqh property or nloney has been actually transferred or r.a1d pursuant to such contract or covenant be void agaInst his trustee appointed under this Ordinance I I I 11 , I ' , I !
: I , c)' I~ __ ~ _______ -~ ____ ~_'~ ___ ~_~~ __ C~- I I nsolvenoy Oredinanoe.

81 (3.)

"Settlement" shall for the purposes of this sec'tion include any conveyance or transfer of property.

t f d 90 .

.

Every conveyance assignment gift delivery or Avoidance of h' t-h .

f fraudulent ereon rna e every preferences.

TanS er 0 proper y or c ar ge t payment made every obligation incurred and every Q.

38 Vic.

judicial proceeding taken or suffered by any debtor No.5, Ii.
107. unable to pay his debts as they become due fronl his own moneys in favor of any creditor or any person in trust for any creditor with a view of giving such creditor a preference over the other creditors shall if a petition for adjudication of insolvenoy be presented against such -debtor within six nl0nths after the date of making taking paying or suffering the same and adjudication of insolvency be made on such petition be deemed fraudulent and void as against the trustee of the insolvent appointed under this Ordinance but this section shall not affect the rights of a purchaser payee or incumbrancer in good faith and for valuable consideration Provided that pressure by a creditor shall not be sufficient to exempt any transaction from the operation of this section.
.

91.

Every conveyance assignment gift delivery or Certain transfer of property or charge thereon made executed or &oc~~?b~ces given by any debt.or unable to :pay his d,ebts as t~ey 1re::d~1ent become due from hIS own Inoneys In favor of any credItor preferences.
or any person in trust for any creditor not being for a lb., s. 108. reasonable and sufficient consideration given at the time of making or giving the same shall if a petition for adjudication of insolvency be presented against such debtor within six months after the date of making executing or giving the same and adjudication of insolvency be made thereon be deemed a fraudulent preference and shall be void as against the trustee of the insolvent under this Ordinance and shall not be avail- able to the creditor as against the trust.ee and the property conveyed transferred or charged or the full value thereof shall be recoverable by the trustee from such creditor or any person who shall hold the same jn trust for such creditor or any person to· whom such credi tor or person holding the same in trust shall have conveyed transferred delivered or nl0rtgaged the same if such persqn had at the time of such conveyance transfer delivery or mortgage notice of such fraudulent preference.
I_~_~~_C_~~_~~'~_~_", _C~'~"~~' "~~,-~' ,~~~~--~,~-~'~,~-~~_ ,'~,,~~-~----'-~_~'~ , ' , ' :1 ' Certain conveyances, &c., to be deemed fraudulent unless bona, tides is proved.

Q.

38 Vic.

No.5, s. 109. '

I nsoZvency Ordinance.

92.
Every conveyance assignlllent' gift delivery or transfer of property or charge thereon Inade executed or given by any debtor unable to pay his debts as they becolne due fr0111 his own nloneys and the effect whereof is to defeat or delay the creditors of such debtor or to dilninish the property to be divided an10ngst his creditors shall if a petition for adjudication of insolvency be presented against the debtor within six nlonths thereafter be deeIned fraudulent and void as against the petitioning creditor and if adjudication of insolvency be Inade on such petition shall also be deelned fraudulent and void as against the trustee in the insolvency unless in either case it shall be proved that such c,onveyance a.ssignnlent gift delivery transfer or charge was in fact l1lade in good faith proof whereof shall be upon t.he party alleging the validity of the transaction Provided that pressure by a creditor shall not be sufficient to protect any such transaction nor shall any such transaction acquire any validity by reason only that it was Illade or done in pursuance of an antecedent agree111ent. '
93.

\Vhen any insolvent has any property elsewhere Cout:t may ~~~~~;ance of than in the Territory the court Illay upon the application of the trustee order the insolvent to execute all such propfrh deeds instrun1ents and writings and do and concur in all :T~~rit;r;.
such acts matters and things as n1ay be necessary to lb., 8.110. enable the trustee to realize or n1ake available the whole or such part thereof or of the proceeds thereof as the court n1ay think proper for distribution an10ngst the creditors of the insolvent.

Payment and delivery of money by , agents to trustees.

lb., s. 111.

No lien on papers.

94.


Any banker attorney or agent of an insolvent shall pay and deliver to the trustee all moneys and securities in his possession or power as such bank~r attorney or agent, unless he be by law entitled to retaIn the sanle as against the insolvent or the trustee If he do not ,he shall be guilty of a contelnpt of court a.nd Inay be punished accordingly on the application of t.he trustee Provided that no person shall be entitled as against.
the trustee to withhold possession of any books of account papers or writings reJating to the estate or to clahn any liep the:r~on! '

' - -.:.~-.....:"~--~-:....=.....::....:..'-_.

__ - .~- .

I nsolvenoy Ordinanoe.

S3 95.

Nothing in this Ordinance contained shall Protection of cer~ain 1 transactions I'd ' rene ler Inva 1 - (1.)

Any payment made in good faith and for value ~~~~vent, received to any ~ns~lve~t before the date of ~o~~:,:~ci12.
the order of adJudication by a person not having at the time of such payment notice of any act of insolvency cOInnlitted by the for insolvent and available against hin1 adjudication, - (2,) Any payment or delivery of llloney or goods belonging to an insolvent made to such insolvent by a depositary of such money or goods before the date of the order of adjudi cation who had not at the time of such payment 01' delivery notice of any act of insolvency committed by the insolvent and .
available against hiln for adjudication, (3.)

Any contract or dealing with any insolvent made for valuable the order consideration before the date of of adjudication by a person not having, at the tillle of Inaking such contract or dealIng notice of any act of insolvency COlll111itted by the insolvent and available against hin1 for adjudica.tion.

faith and in good 96.

Subject and without prejudioe to the provisions Protection of of this Ordinance relating to the proceeds 'of the sale and ~:!
!~!~!ions seizure of goods and to the provisions of this Ordinance entere,d into aVOl lng certall1 sett elnents an aVOle lng on t le groune I'elation to of their constituting fral.ldulent preferences or otherwise the prorerty '1 d ' I' 1 by or m .

d' 1 of the .

certain conveyances charges payments and judicial insolvent.

proceedings the following transactions by and in relation lb" s. 113. to the property of an insolvent shall he valid llotwith st.anding any prior act of insolvency- (1.)
Any disposition or contract with respect to the disposition of property by conveyance transfer charge delivery of goods paylnent of money or otherwise howsoever nlade by any insolvent in good faith and for valuable consideration before the date of the order of adjudication with any person not having at the time of the,making of snch disposition of c I~" ~,~~~,c j 34 Insolvency Ordinance.- property notice of any act of insolvency comnlitted by the insolvent and available against hil11 for ad.iudication.
(2.)

Any execution or attacIunent against the property of the insolvent executed in good faith by s-eizure and sale before the date of the order of a.djudication if the person on whose account such execution or attachnlent was issued had not at the tinle of the sanle being so executed by seizure and.

sale llotice of any act of insolvency conllllitted by the insolvent and available against hiIn for adj udica timl.

As to Discovery of Insolvent's Prope1oty.

.

.

97.
.

.

97.

The court l11ay on the application of the trustee Power of or any creditor at any tilne after an order of adj udication ~~:~~~ persons before has been nlade against an insolvent order the insolvent d It suspected or Ius wIfe or any person whatever kno\vn or suspecte (If having to have in his possession any of the estate or effects f:~Jl~~~t.of belonging to the insolvent or supposed to be indebted Q.

3S Vic.

~.o40\T~~.114.


to the insolvent or any person whonl the court I11ay deenl capable of giving inforlnation respecting the insolvent No.
12, s. 1. his trade dealings or property to attend before it or (iIi any place other than within the Central Division of the Territory) before any Inagistra~e at a tiIne or ti111eS to be specified in the order and nlay thereby also require any such person to produce any dOCUl1lents in his custody or power relating to the insolvent his dealings or property and if any person so sUI11nloned after having been tendered a reasonable sunl for expenses refuses to COl11e before it or before the exanlining magistrate at the tinle appointed or refuses to produce such docunlents having no lawful il11pediInent Inade known to aild allowed by the court or exanlining I11a.gistrate at the tilne of sitting such court or exal11ining nlagistrate I11ay by wa.rrant a.ddressed to any constable or prescribed officer cause such person to· be'apprehended and brought up for examination.
\, Question to be answered although criminating.

Q.

38 Vic.

No.5, s. 115.

98.

No question put to any insolvent on any exal11ination under this Ordinance sha.ll be deelned unlawful by reason only that the answer thereto nlay expose him to punishl11ent in respect of SOll1e OIle or 1110re acts or things made punishable as misdemeanors under the provisions of Chapter LII!.

of the Crilninal Coele.

\ I nsolvenoy Ordinanoe.

35 b h ' d .

99.


The court or examining magistrate may examine Examination 'h b d ' of parilies by or cause to e examIne upon oat eIt er y wo~ of court.. mouth or by written interrogatories any person so brought ~.
3~ Vic' before it in manner aforesaid concerning the insolvent his 0., s. 1 dealings or property and if any such person shall refuse to answer to the, satisfaction of the court or examining 111agistrate such court or eXalnining 11lagistrate may cOlnmit hiIn to prison for any period not exceeding six calendar months as in its discretion shall seeln just.

16 .

.

h b , , 1" ~ 1 100.

If any person on his exanlination before the Order of .
d bt d court for h 11 court or exalnlnIng magIstrate s a appear to e In e e payment of to' the insolvent the court or examining magistrate mayamd°l!tntt d a 1m e on on t e app IcatIon of t 18 trustee order 1m to pay to t e exami~ation.
trustee at such time and in such manner as to the court lb., s. 117. or examining magistrate seems expedient the anlount , appearing to be due or any part thei'eof either in full discharge of the whole amount in question or not as the court or examining magistrate thinks fit with or without costs of the examination.

h' h Possession of P1·operty.

101 .

.Lt\.ny person acting under warrant of the court l::3eizure of Inay seize and attach any property of' the insolvent property of Insolvent. "
divisible among his creditors under this Ordinance and lb., s. 118. in the insolvent's custody or possession or in that of any other person and with a view to such seizure or attach- nlent may break open any house building 0r rOOln of the insolvent's where the insolvent is supposed to be or any building or receptacle of the insolvent 'where any of his property is supposed to be ' And where the court is satisfied that there is reason to believe that property of the insolvent is concealed in a house or place not belonging to hiIll the court luay if it thinks fit g~nt a search warrant to any constable or prescribed officer of the court who Inay exeoute the sall1C nccording to the tenor thereof, 102.
The person making any such seizure or attach- Attachment.

Inent shaH leave with the person in whose possession any lb., s. 119. such property is attached 'a copy of the warrant together with an inventory of such property having subjoined thereto a notice that such property has been attached by him - - - - - - - - - - - . '

.. , .••.

-_.

____ .•.. _~ _ ' " _ " · .

-_o · •• ~-_---:-:=========_ 36 Custody.

Reward for discovery of concealed property.

Q.

38 Vic; No.5, s. 120.


Post letters addressEd to insolvent.

lb., s. 121.

Insolvency Ordinance.

Any property so attached Inay be fmnoved or secured.

on the preInises by sealing up any repository rOO1n or closet and S0111e person ll1a.y be left on the prmnises in custody thereof.

.. .

103.
.. .

103.

Any person who shall lnake discovery or give to the trustee inforlY1a.tion which shall lead to the 'discovery of any concea.led property of an insolvent not before COlne to the knowledge of the trustee shall be entitled to such revJard not exceeding one-tenth of the value of the property so discovered as t.he court Inay allow.

Post Zette'l's.

104.


The court upon the application of the trustee Inay fr01Yl tilne to tirne order that for such tilne as the court thinks fit not exceeding three 1110nths from t.he date of the order of adjudication post letters addressed to the insoqent at any place or any of the 'places lllentioned in the order shall be re-directed sent or delivered bv the chief postlnaster 01' the officers a.cting under 11i]n to the trustee or otherwise as the COl.ut directs and the saIne shaH be done accordingly.
Oonduct of insolvent.

Ib., s. 122.

PART VI.---..

A.Dl\UNISTRATION OF PROPERTY.

GenM'al Provisions affecting A d1J1/in/stra.tion of Prope'rt:z;.

105.

(1.)

The insolvent shall to the utlnost of his power aid in the realization of his property a.nd the distribution of the proceeds anl0ngst his creditors .

(2.)

He shall on or before the day appointed by the order of adjudication for that purpose deliver to the trustee the statelnellt.
lllentioned in t.he order of adjudi cation and shall also give such inventory of his property such list of his creditors and.
debtors and of the debts theIn respectively sublnit to such due to and fI'0111 exanlination upon oath or- otherwise by the trustee in respect of his pi'operty or his creditors (for which purpose the trustee shall have power to a.dlllinistm~ oaths) attend such nleetings of his creditors wait a.t such times on the trustee execute such powers of attorney conveyances deeds and instrulllents and generally do all such acts and things in relation to his property and the distribut.ion of the proceeds alnongst his creditors as may be reasonably j nsoivency Ordinance.
required by the trustee or n1ay be prescribed by rules of court or be directed by t.he court by any special order or orders Illade in reference to any particular insolvency or made on the occasion of any special application by the trustee or any creditor (3.)
If the insolvent wilfully fail to perfonn the duties iInposed on him by this section or if he fail to deliver up possession to the trustee of any part of his property which is divisible aI1l0ngst his creditors under this Ordinance and which Illay for the ti:me being be in the possession or under the control of such insolvent he shall in addition to any othel~ pl~n}slllnent to which he' Il1ay be subject be guilty of a conteinpt of court and may be plinished accordingly. '

106.

(1.)
106.

(1.)

The trustee shall in the adlninistration of Ool1duct of 'I • 'f the property of the insolvent and in the distribution trustee .. 1 .

Q.

38 VIC.

11S CreCtltors t ereo H,11l0ngst h directions that l1Ul,Y be given by resolution of the creditors at any general meeting or by the con1mittee of inspection and any directiolls so given by the creditors at any general Ineeting shall be deell1ed to override any directiolls given by the cOlnnlittee of inspection 1 " laVe regarn to any No.5, s. 123.

(2.)
(2.)

The trustee shall ca,l1 a nweting of the COll1·· Meetings,of Initteeof inspection once at least every two 11lonths when committee.

they 111ay audit his accounts and cletennine whether any or what dividend is to be paid (3.)

He Illay also call special meetings of the C0111- 11littee as he thinks necessary.

107.

(1.)

Subject to the provisions of this Ordinance Trllsteemay and .to sl1;ch direc~ions .as a:foresaid the trustee shall di~~~1io~t&c.
exermse Ins own chscretlon In the rnanagelnent of the Ib., s. 124. estate and its distribution arnongst the creditors (2.)

The trustee shaH frOll1 tilne to tin1e sunlnlon Mretings of general Ineetings of the· creditors for the purpose of creditors.

.. h' lb .• s. 124. ascertaInIng t err "VIS es.

.

h 108.

(1.)

The i1).solvent or any creditor debtor or Appeal fro~ d h other person aggrieved by any act or decision of the trustee.
trustee Inay appea to t e court an t. e court may con rrn reverse or modify the act or decision CO~11plained of and make such order in the prernises as it thinks just Ib., s. 125. h ' fi 1 38 Court may summon meetings.

Truste-e to be in position of a receiver.

Q.

38 Vic.

No.5, s. 126.

1 nsoivency Ord~nance.

(2.)


The court lllay fronl tinle to tinle during the continuance of an insolvency sunllllori general llleetings of the creditors for the purpose of ascertaining their wishes and lllay if the court thinks fit direct the registrar to preside at such llleetings.

109.
109.

1'he trustee shall in relation to and for the IJurpose of acquiring or retaining possession of the pro perty of the insolvent be in the saIne position in all respects as if he were a receiver of such property appointed by the Central Court in· its equitable juris diction and the court lllay on his application enforce such acquisition or retention of property accordingly.

110.

(1.)
110.

(1.)

The trustee lnay upon a statelnent in Trustee may f~iZt!ic~~~rt \vriting verified by affidavit apply to the court for and obtain its opinion advice or direction on any question direction.

respecting the lnanagement of the insolvent estate or his duty in connection therewith lb., s. 127.

(2.)
(2.)

Notice of any such application shall be given to all persons interested or such of theln as the court -shall direct and any trustee acting upon the opinicHl advice or direction of the court so obtained shall be deeInecl to have acted rightly in re~pect of the subject- 111atter of the application provided that he shall not have been guilty of any wilful fraud conceahnent or Inisrepresentation in obtaining such opinion advice or direction.

Ill.
The provisions of this Ordinance with respect Regulations as to the first general Ineeting of creditors shall apply to ~e~ti:~:lof any subsequent general lneeting of creditors in an inso1- creditors fi~~:~~:ti~;~ veney v,Tith this exception that subsequent nleetings of creditors l11ay be sunll110ned by the trustee or by a lb., s. 128. lllelnber of the conllnittee of inspection and that such lneetings lnay (unless otherwise dl"rected by the court in the case of lneetings sUl11nloned by the court) be pre sided over by any person chosen by" the creditors assel11bled at such meeting and that any creditor whose debt has been proved or the value of whose debt has been ascertained at or subsequently to such first lneeting shall be allowed to be present and to vote thereat.
Dealings with Insolvent's P7'operty.

Possession of property by trustee.

lb., s. 129.

112.

(1.)

Where any portion of the property of the insolvent consists of stock shares in ships shares or any other property transfel'able in the books of any company I-~---"-.~-~~.-" "--".

-" i ; j J !

1 nsoivency Ordinance.


~--.---- office or person the right to transfer such property shall be absolutely v"ested in the trustee to the saIne extent as the insolvent might have exercised the sanle if he had not beconle '-insolvent (2.)
vVhere any portion of the property of the insol vent consists of things in action any action suit or other proceeding for the recovery of such things instituted by "the trustee shall be instituted in his offlCial nall1e as in - this Ordinance provided and such things shall for the purpose of s1.1Oh action suit or other proceeding be deenled to be assignable in law and to have been duly assigned to the trustee in his official capacity _ (3.)
The trustee shall as soon as nlay be take possession of the deeds books and cloOUlllents of the insolvent and all other property capable of manual delivery (4.)
The trustee shall keep in such manner as rules of court shall direct proper boo~s of account showing his receipts and disbursements and dealings with the estate and also books in which he shall fronl time to time "Il1ake or cause to be made entries or Ininutes of proceedings at ll1eetings" aliCl of such other l11atters as rules of court shall direct and any creditor" of the insol vent ll1ay subject to the control of the court personally or by his agent inspect such books.

113.

(1.)
113.

(1.)

When any property of the insolvent Disclaimer as f k t bl l ' • acquired by the trustee under this Ordinance consists ~~~;ee:t;~S of land of any tenure burdened with onerous covenants Q.

38 Vic.
38 Vic.

f 0" Unnlar e a e snares In cOlllpallleS 0 un pro a e 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 paynlent of any SUIll of l1l0ney the trustee notwithstand- ing he has endeavoured to sell or has taken possession of such property or exercised any act of ownership in relation thereto ma.y by writing under his hand disclailn such property ' fit bl No.5 s.130.

(2. )
(2. )

Upon the execution of such disclainler the pro perty disclaimed shall if the saIne is a contract be deemed to be determined from the date of the order of adjudi cation and if the same is a lease be deemed to have been surrendered on the same date and if the sanle be shares in any company be deenled to be forfeited and to have 40 I nsoivency Ordinance.

Remedies for persons affected.

Limitation of time .. Q.

38 Vic.

No .. 5, s. 131.

Proviso in case of lease.


Power of trustee to deal with property.

'.lb., s. 132. reverted to the cOlnpany on and fronl that date and if any other species of property it shall revert to the person entitled on the detennination of the estate or interest of the insolvent but whether there shall be allY person· in existence so entitled or not in no case shall any estate or interest therein reIllain in the insolvent (3.)
.. A.ny person interested in any disclainled pro perty Inay apply to the court and the court Inay upon such application order possession of the disclailned property to be delivered up to hinl 01' Inake such other order as to the possession thereof as Ina.y be just (4.)
A.ll,Y person injured by the operation of this section other than a conlpany shares wherein are for feited under this section shall be deeIlled a creditor of the insolvent to the extent of such injury and Inay accordingly prove the SaIne as a debt under the insolvency.

114.
The trustee shall not except as hereinafter pro vided be ent.itled to disclainl any property in pursuance of this Ordinance in cases where an application in writing ha.s been Inade to hiIn by any person interested in such property requiring such trustee to decide whether he will disclain1 or not and the trustee has for a period of not less than twenty-eight days after the receipt of such application or such further tilne as ll1ay be allowed by the court declined or neglected to give notice whether he disclainls the sanle or not Provided that if the iilsolvent sha.ll at the date of adjudication be the lessee of any preInises the trustee instead of disclaiIning inllnediately Illay elect to retain the saIne for a period not exceeding three n10nth8 and.
not being later than the expiration of the lease and at the end of such period Illay disclai~l the saIne.

115.

Su'bject to the provisions of this Ordinance the trustee 'shall have power to do the following things (1.)

To receive and decide upon proof of debts in the prescribed lnanner (2.)

To carryon the business of the insolvent 80 far as Inay be necessary for the beneficial winding up of the saIne (3.)
To exercise any powers the capacity to exercise which is vested in hiIn under this Ordinance and to execute all powers of.

j nsolvency 01yUnCtnce.

4i I .

1 I (4.)

(5.)

attorney deeds and other instrlunents ex pedient or necessary.
for the purpose of carrying into effect the provisions of this Ordinance To, sell all the property of the insolvent (including the goodwill of tbe business if any and the book debts due or growing due to the insolvent) by public auction or private conkact "\-'lith power if he thinks fit to transfer the whole thereof to any person or cOlllpany or to sell the sa,Ule in parcels To give receipts for any 11101iey received by hinl which receipt shall effectually discharge from.
all the person paying such 1110I18YS responsibility in respect of·· the application thereof (6.)

To prove rank clailll a.nd draw a (ljvidend in the Inatter of the ini:mlvency 'of any debtor of the insolvent (7.)

To deal with any property to which the insol vent is beneficially entitled as tenant in tail in the saHle ll1.a.nner as the insolvent Inight have cleqlt with the saIne.

116.
116.

The tl'u.stee Inay with the sanction of t.he 00111- Power of lni.ttee of inspection do all or any of the following ~~:~~~!ise, ililn~- ( ) M 1. ortgage OJ' lLec ge any part o. t 1e property No.5, s. 133.

.\ 1 f 1 k Q.

38 Vic.

of.

the insolvent for the purpose of raising Inolley for the paynlent of his debts (2.)

Appoint the insolvent hilllself to superintend To allow the Inanagenlent of the property or of' any !

;~l:::t to part thereof or to carryon.

the trade of the property.


insolvent (if any) for the benefit of the creditors and in any other respect to aid in administering the property in such lnanner and on such ternlS as the creditors direct (3.)

Bring or defend any action suit or other legal pro.ceeding relating to the property of the insolvent (4.)

Refer any dispute to arbitration conlpronlise all debts claims and· liabilities whether present or future certain or contingent 42 I nsolvenoy Ord~nan(je.
liquidated or unliquidated subsisting or sup posed to subsist between the insolvent and any debtor or person who l11ay have incurred any liability to the insolvent upon the receipt of such sums payable at such tinles and generally upon such ternlS as luay be agreed upon (5.)

1.fake such cOlllprOluise or other arrangmnent as luay be thought expedient with creditors or persons clailuing to be creditors in respect of any debts provable under the insolvency (6.)
N[ake such C0111prOlUise or other arrangeInent as luay be thought expedient ,1I,'ith respect to any clainl arising out of or incidental to the property of the insolvent nlade or capable of being Inade on the trustee by any person or by the trustee on any person (7.)

Divide in its existing fOrIn alIlOngst the creditors according to its esthnated value any property which frOln its peculjar nature or other special circunlstances· cannot advan tageously be rea.lised by sale (8.)
EIUploy a shorthand writer to· ta.ke notes of the proceedings at any nleeting of credito~'s 01' of any eXfuuination held under tIns Ordinance.

The sanction given for the purposes of this section l11ay be a general perluission to do all or any of the abOVeI11entioned things or a perluission to do a.ll or any of then1 in any specified case or cases.

Power of trustee to accept composition or general Bcheme of management.

Q.

38 Vic.

No.5, s. 134.

117 ..

(1.)

The· trustee rnay with the sanction of a .


special resolution of the creditors asseIubled at any lueeting of which the prescribed notice has been given specifying the object of such meeting accept any con1- position offered by the insolvent or-assent to any general schen1e of settlen1ent of the affairs of the insolvent upon such terms as may be thought expedient and with- ~r without a- condition' that the order of adjudication IS to be annulled su~ject nevertheless to the appro.val.
of the court to be testIfied by the judge of the court sIg~l~ng the instruillent containing the terms of such composItIon or scheme or emhodying such terms in an order of the- .

court .

!

I j I I- d !'

~ I' : ;.

j nsoivency Ordinance.

(2.)


Where the annulling the order of adjudication is Inade a condition of any cOluposition with the insolvent or of any general scheIue for the liquidation of hi>3 affairs the court if it approves of such composition or general scheme shall annul the ~djudication on an application made by or on behalf of any person interested and the adjudication shall be annulled from and after the date of the order annulling the salne (3.)
The provisions of any composition or general schenle Inade in pursuance of this Ordinance Illay be enforced bY' lthe ·.court on a Illotion made in a sumluary ma~ner by any person interested and any disobedience of the order of the court Inade on such m.otioll shall be deelued to be a contenlpt of court (4.)
The appToval of the conrt shall be conclusive as t.o the validity of any such conlposition or schellle and it shall be binding on all the creditors so far as relate$ to any debts chie to thelll and provable under the insolvency.

118.

The trustee 111ay frolll tilne to ti111e elllploy a Trustee may solicitor or other agent and where the trustee is hinlself ::;]Fol~Kr and a solicitor he Inay contract to be pa.id a certain SUIU by if a solicit~r .
may be paId way 0 percentage or ot erWlse a.s a remuneratIOn .

or for ~is his services as trustee including' all professional- services serVlCes.

and any such contract shall notwithstanding any law to ~·o~~,~~ci35 • .

the contratybe lawful.

h .

f f 119.

The trustee sha.ll pa'y a.11 SU111S fro111 til1le to Trusteetopay tinle received by hinl into :-311ch bank and to such account blOkYs into as the Iuajority of tbe creditors in nUlllber and value at an.

any general nleeting shall appoint and failing .


such appointnlent into such bank and to such account as the court may appoint and if after either of such appoint- Inents he at any tiIue keep in his hands any sunl exceed- ing fifty pounds for more than ten clays he shall unless he can prove to the satisfaction of the court that his reason for retaining the money was sufficient be subj ect to the following liabilities that is to say- .

(1.)
(1.)

He shall pay interest at the rate of twenty pounds per centum per annum on the excess of such S11IU above fifty.

pounds as he Iuay retain in his hands.

.

-.- .... -.-.- .• -.

- ,- '.

:..=- -:.

- - insolvenoy O'f'd~nanoe.

(2.)


lIe shall on the application of any creditor be dislnissed fr01n his office by the court and shall have no cla.in1 for l'Cllluneration and shall be liable to any expenses to which the creditors 111ay be put by or in consequence of his dis111issal: Power to order sale in case of equitable mortgage.

Q.

38 Vic.

No.5, s. 137.

120.


If any debt or ~U1l1 of 111011ey due to 01' by an insolvent be charged upon any land by way of equitable 1110rtgage the court 111ay upon the application of the trustee or other person being such equitable n10rtga.gee and upon notice to all pa.rties interested 1nake an order for the sale of the land so subject to such equitable l11ortgage.

Power of trustee to redeem before time.

appomted.

lb., 8.

138.

Mortgagee may bid at Bal,e .

.

lb., B.

139.


Description of debts provable in insolvency.

lb., s. 140. '

.f f I d t" 1 l' .

J ' 121.
If the insolvent has 111ade any conveyance assurance deliverv deI)osit or .I)ledge of anv deeds vn~itings goods or chattels subject to a condition for re elllp IOn or re-ue Ivery on payn1ent 0 1110ney or ot 1er- wise at a future dav which ha.s not arrived at the date of presenting the jJetition the trustee 1nay before the tin1e appointed for such redelnption has arrived n1ake pa.ym.ent or tender of n10ney or other perfOrl11anCe according to such condition as fully as the insolvent lnight have clone at the tin1e so appointed (l,nd upon such tender or paylllent shall be entitled to have and receive the deeds writings goods or chattels so conveyed assured delivered deposited or pledged and to recover the sa1l1e fr0111 the person to Wh01l1 they were so conveyed assured.
delivered deposited or pledged or any other persoll having notice of such condition in whose possession they 111ay be.

122. :Any i).lol'tgagee 111ay with the leave of the court first obtained bid at the sale of any 1110rtgaged property.

P1'00f of Debts and Distrib'llt-ion of Assets.

123.
123.

Dm11allds in the nature of unliquidated dan1ages arising otherwise than by reason of a contract or pro111ise shall not be provable in insolvency ·and no person' having notice of any act of insolvency availabJe for adjudicati~n against the insolvent shall prove for any debt or liability contracted by .tl:w insolvent subsequently to the date of his so having notice.

.

Save as aforesaid all debts and liabilities present or future certain or contingent to which the insolvent is subject ~t the date of.
the order of adjudication or to !~~~--co.~c.c_"~.~~~~c~~.~~=c.~~~ ~-~~~-~.-.. ,~~~ ~.~_.

~ __ ~.

~.~.~ .• ~~_~-_~ .

c~~~~,.~=~­ , Insolvency Ordinance.

45 which he nlay beconle subject during the ·continuance of the insolvency by reason of any obligation incurred pre viously to the date of the order of adjudication shall be deemed to be debts provable in insolvency .

All debts shall be proved before the trustee in the Modeofproof.

insolvency .

An.
insolvency .

An.

esti1nate shall be nlade according to the rules of the court for the tinle being in force so far as the sanle nlay be applicable and vvhere they are not applic able at the discretion of 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 va~ue Any person aggrieved by any estilllate 11lade by the Appeal.
trustee as aforesaid 111ay appeal to the court and the court rnay if it think the value of the (lebt or liability incapable of being fairly esti1nated make an order to that effect and upon such order being' 111ade such debt or .
hability shall for the purposes of this Ordinance be deelllecl to be a debt not provable in ins01vency But if the court think that the value of the debt or liability is capable of being fairly esti1nated it 11lay direct· such value to be assessed either before the court itself or SOlne other conlpetent court and-nlay give all necessary directions for such purpose and the alHount of such value when assessed shall be provable as a debt under the insolvency.
"Liability" shall for the purposes of this Ordinance include any compensation for work or labour done any obligation or possibility of an obligation to pay 1nOlley or I110ney's worth on the.
breach of nny express or inlplied covenant contract agreement or undertaking whether such breach does or does not occur 01' is or is not likely to occur or capable of occurring before the close of the insolvency and generally it shan include any express or implied engagement agreernent or undertaking t.o payor capable of resulting in the payluent of 1110ney or Inoney's worth whether such paynlent be as respects amount fixed or unliquidatedi as respects tiIne present or future certain or dependent on anyone contingency or on two or more contingencies as to 1110de of valuation capable of being ascertained by fixed rules or a.ssessable only by a jury or a.s luatter of opinion.
46 Rebat.e of interest on future debts.

Q.

38 Vic.

No.5, s. 141.

Insolvency Ordinance._ 124.
Whenever any proof shall be Inade in respect of any debt of fixed or ascertained a1110unt which has not accrued due at the date of adjudication such proof shall be allowed for the full aI1l0unt of such debt and the creditor shall be entitled to receive dividends thereon equally with the other creditors but after deducting for the purposes of the first dividend a rebate at the pre scribed rate by way of discount Such rebate shall be conlputed upon so n1uch of the debt a.s shall rell1ain unpaid at the tillle of the dec.laratioll of the first dividend and shall be cOlnputed froll1 the tinle of such declaration to t.he t.inle at which the debt would have becOlne payabJe according t.o the ternlS on which it was contracted .
.

Provided t.hat.

in estimat.ing t.he value of any such debt for the purpose of counting the vote of the creditor ::1. like rebate shall be n1ade cOlnpnted fr01n the tilne of voting to the tilne at vvhich the debt would have beC01lle pH.yable as aforesaid.

Trustee may expunge or reduce proof.

lb., s. 142.

125.

The trustee Inay at any tilne upon the appli cat.ion of any creditor or of the insolvent or on his own 1110t.ion and after t.he prescribed not.ice expunge or reduce any proof of debt.
P referen tial debts.

lb., s. 143, altered.

126.

The debts hereinafter n~enti(;med shall be paid in priorit.y to all other debts excepting rent as herein after provided Bet.ween thenlselve's such debts shall rank equE\.lly and shall be pa.id in full 'unless the property of theinsolvent is insufficient to lneet theln in which case they shall abate in equal proportions between theIllselves that is to ~ay- (2.)

(1.)
(1.)

All local rates d1?-e fr01ll hinl at the date of the order of adjudication and having beCOllle due and payable within twelve nlOnt.hs next before.
such date All rates and asseSSlnents assessed on hiIn up to the first day of January or first day of the ordel' of July next before the date of adjudication and not exceeding in the whole one year's assessment All wages or salary of any clerk serv~nt­ labourer or worknlan (ot.her than a natIve under a contract of service under the pro visions of any Ordinance relat.ing to native (3.)
Insolvency Ordinance, 47 labour) in the employment of the insolvent not exceeding three months' wages or salary and not exceeding fifty pou_nds Provided that such wages ,or salary shall be claimed in respect of the three months next before the date of the order of adjudication (4,) All wages of any native under a contract of service entered into under the provisions of any Ordinance relating to native labour.

Save as aforesaid all debts provable under the insolvency shall be paid par'-i passu.

127.

(1.)
127.

(1.)

\Vhere at the tinle ,of t.he presentation of Provisions in the petition for adjudication any person is apprenticed ~~~r~!tice.

or is ,an articled clerk to the insolvent 'the order of ~1~8 Vic adjudication shall if either the insolvent or apprentice N'o, 5, s, i44.
or clerk give notice in writing to the trustee to that effect be a cOlllplete discharge of the indent.ure of appren- ticeship or articles of agreel11ent and if any 1110ney has been paid by or on behalf of such apprentice or clerk to the insolvent as a fee the trustee mayan the application of the apprentice or clerk or of some person on his behalf pay such sunl as such trustee subject to an appeal to the court thinks reasonable out of the insolvent's property to or for the use of the apprentice or clerk regard being had to the alnount paid by hinl or on his behalf and to the tinle during which he served with the insol- vent under the indenture or articles before the COlnnlence- Ill'cnt of the insolvency and, to the other Cil'CUnlstances of the case ' ,(2.)
Where it appears expedient to the trustee he lnay on t.he application of any apprentice or articled clerk to the insolvent 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 agreelnent to SOllle other person, , , 128.

(1.)
(1.)

No distress for rent shall be lllade or levied No lisbress to or proceeded in against the property of a debtor after proceed a~ter presentatIOn an order of adjuchcatlon has been 111ade against 111m or (.f petibion .. y U11 une er ar a tel' a pe 1 Ion as een presen e f III.

of this Ol~dinance but the landlord or person to whom the rent is payable shall be entitled to receive out of the estate in priority to all other creditors so t d b h' t lb., s. 145. h b 1 P t 't' , · .

.

o· _ .

- • - .

_.


', .

: '._._.

__ ~ ._ ..... ,..,.. • • L • • • • • • • ' • • _ .

• ...-:.='.., .• .-.

_ 48 Insolvency O'rdinance.

n1uch rent as shall be then due t.ogether with a SUlll in lieu of rent proportioned to the period (if any) that has elapsed between the last date at which rent became due and the date of the order of adjudication but so that the w hole sum so received shall not exceed the aillount of three n10nths' rent (2.)
The landlord or person entitled to rent nlay prove for any surplus that Inay be due above such Slun.

129.

When any rent or other payn1ent falls due at st.at.ed periods and the order of adj·~ldioation is lllade at any tinle other than one of such periods the person entit.led t.o such rent or paynlent Inay prove for a pro portionate part thereof up to the day of the adjudica tion as if s110h rent or paynlent grew due fronl day t.o cla.y.
130 .. Interest on any debt provable in insolvency c01nputed up to the date of adjudication luay be allowed by the trust.ee under the saIne cil'cnlllstances in which interest would have been allowable if an a.ction had been hi'ought for such debt.

131.
131.

If any insolvent is at the date of the order of adjudication liable in respect of distinct contracts as me1n1er of two or 1110re distinct firllls or as a soleoon tractor and also as ll1elllber of a £irlll the Cil'Onnlstance t.hat such finns are in whole or in part cOlnposed of the saIne individuals· or that the sole contractor is also one of the joint contra.ctors shall not prevent proof in respect of such contracts against the properties respectively liable upon such contracts.

132.
132.

The trustee with the consent of the creditors testified by a resolution pa.ssed in general Ineeting or of the con1111ittee of inspection Inay fro111 tilHe to tin1e during the continuance of the insolvency Inake such allowance as Illay be approved by the· creditors or cOlnll1ittee of inspection to the insolvent out of the estate for the sup port of the insolvent and his ralnily or in consideration of his services if he is engaged in winding up his estate.

Proof in case of rent and periodical payment.


Q.

38 Vic.

No.5, s. H6.

Interest on debts.

lb., s: 147.

Proof in respect of distinct contracts.

lb., s. 148.

Allowance to insolvent for maintenance or service.

lb., s. 149.

Set·ofl'.

lb., s. 150.

133.

Where there have been n1utual credits mutual debts or other n1utua.l dealings between the insolvent and any other person proving or claiIning to prove a debt under his insolvency an account shall be taken of what I~~······-"~~ Insolvency Ordinance.
49 is due from the one party to the other in respect of such nlutual dealings and the SUln due from the one party shall be set off against any sunl due froln the other party a.nd the balance of su eh account and no more shall be clainled 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 an insol vent in any case where he had at the time of giving credit to the insolvent or of incurring the debt to the insolvent notice of an act of insolvency conlnlitted by such insolvent and available against hiln for adjudication.
134.

(1.)

A creditor holding a specific security on Provision as the property of the insolvent or on any part thereof may to dB.cured Q.e 3~t~ic .

on giving up his security prove for liis whole debt .

(2.)

He shall also be entitled to a dividend in respect Xo.

5, s. 1M~ of the balance clue to hinl after realising or giving credit for the value of his security in lnanner and at the time prescribed (3.)
The trustee with the consent o"f the cOllllnittee of inspection may at any tiIlle within thirty days after proof has been tendered by a secured creditor require such creditor to give up his security on paynlent of the specified value and the creditor shall on such paylneilt give up his security accordingly and do 11lake and exeoute all necessary acts conveyances and assurances for that purpose Provided that a secured creditor "vho has provedlnay at any time before he is so required to give up his security correct his valuation thereof by making fresh proof of his debt.
(4.)

.I\.

creditor holding such security as aforesaid and not conlplying with the foregoing conditions shall be exoluded frolll all share in anv dividend.

u .

Di-viclends.

135.


The trustee shall fronl tinle to time when the el i 1 h h I ' h ' I oOlnmittee of inspeotion determines deolare a dividend Dfisdt!i?dutiodn IVI en s. amongst t le ore Itors W 0 ave provec In t e Inso venoy lb., s. 152. and shall distribute the saIne aocordingly and in the event of his not deolaring a dividend for the space of six Inonths he shall sumnl0n a Ineeting of the oreditors and explain to thell1 his reasons for not deolaring the same.
:p 0 50 Provision for creditors residing at a distance.

(~.

38 Vic.

No.5, s. 153.

I nsolvenc,!!

Ordinance.

136.
In the calculation and distribution of a dividend it shall be obligatory on the trustee to nlake provision for debts provable in insolvency appearing £r0111 the insolvent's staternents or otherwise to be due to persons resident in places so distant fronl the place where the trustee is acting that in the ordinary' course of COllllllUllication they have not had sufiicient tilne to tender their proofs or to establish thelIl if disputed and also for debts provable in insolvency the subject of clainlS not yet deternlined.
.

137.
Any creditor who has not proved his debt Rigl~t of h~~d~~~rp~ohv~d before the declaration of any dividend or dividends shall ~eb)~ be:~re f be entitled to be paid out of any Illoneys for the tilne d?~id~~tn 0 being in the hand of the trustee any dividend or dividends he 11lay have failed to receive before such nloneys are lb., s. 154. lllade applicable to the paynlent 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.
Final dividend.

lb., s. 155.

138.

When the trustee has converted into 11l0ney all the property of the insolvent or so 11luch thereof as can in the joint opinion of hiInself and of the conlnlittee of .

inspection be realized without needlessly protracting the insolvency he shall declare a final dividend and give notice of the tilne at which it will be distributed.

Notice of dividends.

139.

The trustee· .


shall cause notice to be given in the Gazette and such other newspapers as lllay be pre scribed of all dividends and nloneys payable to creditors and when and where the saIne are to be paid.

Insolvent entitled to surplus.

lb., s. 156.

140.

The insolvent shall be entitled, to any surplus reInaining after paynlent of his 'debts with interest at the prescribed rate and of the costs cha.rges and expenses of the insolvency.

No action for dividend.

lb., s. 157.


141.

No action or suit for a dividend shall lie against the trustee but if the trustee refuses to pay any dividend h the court nlay if it thinks fit order the trustee to pay t e same and also to payout of his own lnoneys interest thereon for the tinle that it is withheld and the costs of .

the application, I nsolvenoy Ordinance, 51 J oint and SeZJa1'ate Estcttes.

, I h d 1 ' h d '1' ' I I , d' h ' d' 142.

Where one member of a partnership has been PropEr~y of .
partners to be ac JU lCate an Inso vent ane any ot er a JUC lcatlOn IS vested in sam~ made against a Inelnber of the same partnership then trn~tee .. h Q .

.

:>8 V 10, un ess t e court ot erWlse last-mentioned Inenlber shall vest in the trustee appointed in respect of the property of the first-n1entioned Inember of the partnership and the court Inay give such directions for anlalgalllating the proceedings in respect of the pro- perties of the Inembers of the saIne partnership as it thinks just .
lrects t e property or suc No.5, s. 159. h · {I .

h' d bt f· IS e .

143.

If one partner of a firn1 is adjudged insolvent Joint creditor any creditor to whonl the insolvent is indebted jointly ~~~!~O~f for with the other partners of the firnl or any of them may voting.
t' prove le purpose 0 vo Ing at any ll1ee Ing of creditors and shall be entitled to vote thereat but shall not receive any dividend out of the separate property of the insolvent until all the separate creditors have received the full anl0unt of their respective debts.

lb., fl.

160, or tl t' f 144.

Where joint and separate properties aie being Joint and adln~nistered div~dends of the joint and separate pro- di~iJ:!~18.

pertIes shall subJect to any order to the contrary that lb., B.

161.
161.

Inay be made by the court on the application of any person inter.ested be declared together and the expenses of and incident to such dividends shall be fairly appor- tioned by the trustee between the joint and separate properties regard being had to tHe work done for and .

the benefit received by each property, 145.

(1.)

Where a rnember of a partnership is Suits by .

.


I adjudged insolvent the court may authorise the trustee f~~~~~:;t~d with consent of the creditors testified by a special }il1rtners.

d S 16?

.

reso utlon to comnlence an prosecute any actlon or SUI .,.-.
in the names of the trustee and of the insolvent's partner or partners and thereupon such proceedings may be had :1S if such action or suit had been conlmenced with the consent of such partner or partners and any release by such partner or partners of the debt or demand to which the action or suit relates shall be void " t Ib (2.)

Notice of to comlnence the action or suit shall be given to such the application for authority 52 I nsolvenoy Ordinanoe.
::,\ On payment or release of debts insolvency may be' annulled.

Q.

38 Vic.

No.5, s. 163. partner or partners and he or they may show cause against it and on his or their application the court nlay if it thinks fit direct that he or they shall receive his or their proper sha.re of the proceeds of the action or suit and if he or they do not claiIn any benefit therefroln he or they shall be indelnnified against costs in respect thereof as the court directs.

146.
146.

If the insolvent or a.ny person on his behalf pay in full all his creditors or obtain a release of the debts due by the insolvent to such creditors the insolvent l11ay apply to the court for an order annulling the adjudication and t.he court upon being satisfied that all the creditors of the insolvent have been paid in full or have released their l11ake such order upon such ter111S as to debts 111a.y C0l11nlission or rellluneration or charges alrea.dy incurred as 111ay SeeIll just.
PART VII.-CLOSE OF INSOLVENCY AND CERTIFICATE.

Last Examination of Insolvent.

1 Court to • f l ' 1 .

141.

The court shaH 011 the application of the trustee t or if he O111it to lnake such application then on the appli- a;ppt.oint .

f SIt mg or as exarp.ination.

cahon 0 t 1e 111S0 vent appoInt S0111e ay not ear leI' t an one nl0nth £1'0111 the date of the order of adjudication for lb.,s.164.
the insolvent to attend in court to pass his last exalnina tion of which a.p~pointlllent the prescribed notice shall be given but the court shall have power fr0111 tiIne to tilne to enlarge or extend the tinle so appointed d ' · l' h Adjournmenb thereof.

At the tilne so appointed or at any enlargeInent -or adjourlunent thereof the court 111ay in any of the following cases adjourn such exalllination' for .such period as the court 111ay think fit that is to say-- (1.)
If the exalllination and· accounts of the insolvent are not sa.tisfactory and it appears to the court that his failure to give furthe,r or better infornlation or accounts is attrI butable to any neglect or ~efault on his part (2.)

If it appears to the court that the insolvent has -wilfully disobeyed any order of the court in his insolvency .

(3.)

If the court shall think it fit that an adjourn llient $hould be Inade.

I-=--~--'-~-"-"--' -- - -.------ ----- i nsolvenoy Ordinanoe.

53 148.
53 148.

The court Inay order that the last examination Where to be shall be held before any Inagistrate in any place other t~1~8 Vic.

than within the Central Division of the Territory who for No.5, s. 1135. such purpose shall hav.e all the pO'wers of the court under the last.

preceding section.

Close of l-nsolvenoy.

.,.

149.

(1.)

When the whole property of the insolvent 910se of or so l111Wh thereof as ca.n in the joint opinion of the ~~8o~ve;6¥' .
trustee and cOlnmittee of inspection be realized "\yithout needlessly protracting the insolvency has been realized for the benefit of his creditors or a composition or arrangeInent has been cOlnpleted the trustee shall n1ake a, report accordingly to the court and the court if satisfied that the whole of the property of the insolvent has been realized for the benefit of his creditors or that so Tlluch thereof as can be realized without needlessly protracting the insolvency has been so realized or that a composition or arrangeInent has been cOlnpleted shall make an order that the insolvency has closed and the insolvenGY shall be deellled to have closed at and after the date of such order.
(2.)

A copy of the order·closing th~ insolvency shall be published in the Gazette and the production of a copy of 'such Gazette containing a copy of the order shall' be conclusive evidence of the order having been l1la.de and of the date and contents thereof.

Disoha1"ge of Insolvent.

l' 150 .

.t\.t any time after the insolvent has passed his Cert~ficate last exanlination or at any earlier til1l8 with the consent ~~~!d on of the creditors testified by a· special resolution' the certda~t~ h l ' b .
can I IODS.

Inso vent ll1ay upon t 1e prescrl ed notlce app y to t e lb., s.167.

court for a certificate of discharge but such certificate shall not be given unless it is proved to the court either- (1.)

That the insolvency has arisen fro111 circun1- stances ror which the insolvent cannot justly be held responsible or 1 .

(2.)
(2.)

That a special resolution of his creditors has been passed to the effect that his insolvency has arisen £r01n such circumstances as last aforesaid and that they desire that a certifi cate of discharge shall be grantea to him or .

."

~ .. - i nsolvenc'!J O'pdinance.

..

(3.)

That the gross anlount realized in the estate is equal to the total anlount of debts proved in the estate.
But the court Illay nevertheless suspend for such tilne as it deenls to be just or withhold altogether the certificate of discharge if it appears to the court by sufficient evidence that the insolvent has n1ade default in giving up to his cr.editors the prope-rty which he is required by this Ordinance to give up or that a prosecution has been conllnenced against hin1 in pursuance of the provisions of any Ordinance or law telating to the punislllnent of fraudulent debtors.
ApplicatiuD for certificate after lapse of time.

Q.

38 Vic.

No.5, s. 168.

151.

(1.)
Whether any application shall have been lnade under the preceding section or not the court at the tin1e and in the !circun1stances following Inay on the application of any insolvent who has not obtained a certificate of discharge and after the prescribed notice grant such certificate and for such purpose lnay alter or vary any decision theretofore pronounced- (a) At the expiration of twelve lnonths fr01n the date of adjudication \vith the assent testified in writing of a.lnajority in n11n1ber of the creditors whose debts aInount to ten pounds and upwards who have proved in the estate (b) At the expiration of two years without the consent of any creditor Provided that upon any such application the.
insolvent shalllnake oath that he has nlade a full and fair discovery of his estate and has not granted or pron1ised any pay- 11lent or security and has not entered into any collusive agreen1ent for the purpose of obtaining such consent (2.)

The court lnay nevertheless upon any such application withhold the certificate or suspend the saIne for such period as it shall deeln just.

152.

(1.)
152.

(1.)

A.t the eXl=>iration of three years fr0111 the Application at date of the order of adjudication any insolvent who has t~e end of ~b~,e~.Yle:9r.s.
not obtained 'a certificate of discharge Inay with the consent testified in writing of a n1ajority of the creditors whose debts an10unt to ten pounds and upwards who have proved in the estate apply after the prescribed notice to the court for a certificate' - " " - - - - 1'"--'-' - ' ,~~_~~c_~ ~"',~ ~.~--='.=c·cc.~"",:::,,-,-,-.,:,=·~.c"'C:'::_::_:::=~~C=·~~:~',~:'_--' ,.,~~.

i , .

, I nsolveiic'!j Ordinance.


(2,) Upon its being proved to the satisfaction of the oourt that such consent has been obtained and has been so obtained without fraud or collusion the court shall grant the certificate of discharge the Provided that upon any such applioation insolvent shall make oath that he has made a full and fair discovery of his estate and has not granted or promised any paylllent or security and has not entered into any collusive agr,eerl1ent for the purpose of obtaining such consent.
f "h 153.

If on any application for a certificate the court Con?itional certificate.

e 0 opInIon t at a certlllcate oug t not to eQ.

38 Vic.

S la 1 11 b granted unoonditionally it Illay grant a certificate subj ect No.5, s. 170, to any condition touohing any salary pension elll01uments profits wages earnings or income which nlay afterwards become due to or earned by the insolvent and generally touching after acquired property.

b h '.C!

t .

· d f b 1 , 154.


Any payment contract covenant or security for Payments,&c, t to mfluenCfl h t e paynlen 0 any money rna e or gIven y an Inso ven creditors void.
or other person to or in trust for any creditor for the lb., s. 171. purpose or with intent to persuade or induce such creditor to forbear opposing the granting of a certifi- cate or to c.onsent to the granting of a certificate or to forbear appealing against the granting of a certificate shall be void and the I1l0ney (if any) paid may be recovered and-any money so agreed to be paid or secured shall not be recoverable.

.- 155.
.- 155.

The certificate of discharge shall be in the Form and prescribed ~form and shall be under the ,hand of the ~:rttifi~fate.

registrar and seal of the court but shall not be drawn up lb., 8.172. or take effect until after the expiration of the tilne allowed for appeal.
or if an appeal be brought until after the decision of the court of appeal thereon and shall be~tr date either the day after the expiration of the time a.llowed for appeal or the day of the decision of the court of appeal as the case may require, ~ f 156.

A .. certificate of discharge shall not release the Effect of 1 c certificate.

y means 01 lb., s. 173, d bt .


InSO vent rom any e or Ia I Ity Illcurre any fraud or breach of trust nor from any debt or liability whereof he has obtained forbearance by fraud or from any debt or liability due by him as trustee of an insolvent l' b'}" .

d b ·.

I ~ - .

- - - - - - - -- .-'-- 56 .

.

Insolvency 01·dinance.


estate in respect of any sunl of m.oney iInpropedy retained or elnployed by hinl as such trustee But it shall release the insolvent £roln all other debts provable under the insolvency with the exception of (1.)

Debts due to the Crown.

(2.)


Debts \vith which the insolvent stands charged at the suit of the Crown or of any person for any offence aga.inst a statute relating to any branch of the public revenue 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 offeIlce.
}ind he shall not be discharged Jronl such excepted debts unless the Treasurer with the approval of the Lieutenant Governor certifies in writing his consent to his being discharged therefrOln.

157.
157.

A certificate of discharge shall be sufficient evidence of the insolvency and of the validity of the proceedings therein and in any proceedings that Illay be instituted against an insolvent who has obtained a certificate of discharge in respect of any debt fronl which he is released by such certificate the insolvent Illay plead that the cause of action occurred before his discharge and Inay 'give this Ordinance a;nd the special nlatter in evidence.

.

Effect as evidencE'.

Q.

38 Vic.

No.5, !

!.


174.

Pleading.

Exception of joint debtors.

lb., s. 175.

IS8.The certificate of discharge shall not release any person who at the date of the order of adjudication was a partner with "the insolvent or was jointly bound or had Inade any joint contract with hinl.

Status of undisch!lrged insolvent.

lb., s. 176.

Stat'lts of Undischa?~ged Insolvent.

159.


\Vhere a person who has been nlade insolvent has not obtained his discharge then fronl and after the close of his insolvency the following consequences shall .

ensue- (1. )
ensue- (1. )

No portion of a debt provable under the insolvency shall be enforced against the property of the person so Inade insolvent until the expiration of three years froIn the close of the insolvency and during that time if he pay to his creditors such additional sunl as will with the assets realized in the estate make up twenty shillings in the pound on all debts· r I 1 ~ .. 1 j 1 - Insolvency Ordinance.

, 57 (2.)
, 57 (2.)

proved in the insolvency he shall be entitled to a certificate of discharge in the same 11lanner as if an aT1l0unt equal to twenty shillings in the pound on such debts had originally been paid out of his property .

.
.

A.t the expiration of a period of three years fr0111 the close of the insolvency if the insol vent has not obtained a certificate of discharge any balance rel11aining unpaid in respect of any debt proved in the insolvency but without interest in the Ineantinle shall be cleenled to be a subsisting debt in the nature of a juclgl11ent debt and subject to the rights of any persons who have becOIne creditors of the debtor since the close of his insolvency 111ay be enforced.
against any property of the debtor with the safpction of the Central Court or a judge thereof but to the extent only and at the tilne and in l11anner directed by such court or judge and after giving such notice and doing such acts as l11ay be prescribed in that behalf.

cee Ings In lnso vency nanle y- j .

• __ ' .

1 Q.

38 VIC.

PART VIIl.--SuPPLEMENTAL PROVISIONS.

As to P'l'oceedinqs .

.

.

1 .. 160.

The following provisiol1s shall apply to pro- Supple~ental .

regulatIOns as d ~o proceeding .

(1.)


Where two Of 1110r8 insolvenc,r petitions are mmsolv.ency.

'presented agaInst the sanle debtor or agaInst No.5, s. 177. debtors being 111enlbers of the saIne partner- ship the cohrt may consolidate the proceedings or any of thel11 upon such tenns as the court thinks fit.
Where the petitioner does not proceed with due diligence on his petition the court Inay substitute as petitioner any other creditor to whom the debtor may be indebted in the anl0unt required by this Ordinance in the case of a petitioning creditor.

Proofs of debt 111ay be made by affidavit SWOfn before any justice cOlnmissioner for affidavits or registrar or in any other mode which may be prescribed or which nlay be deemed satisfactory by the trustee.

(2.)

(3.)

&8 _ .

Insolvency Ordinance.

.

.

(6.)


(5.)

(4.)

A corporation 11lay prove a debt vote and otherwise act in insolvency by an agent duly authorised.

In any case of creditors being partners any thing by this Ordinance authorised to be done by a creditor Inay be done by anyone or n10re of the 111en1bers of such partnership in the nan1e and on behalf of the partnership.
A creditor 11lay in the prescribed 111anne1' by instrUl1lent 'in writing appoint a person to represent him in all 11latters relating to any debtor or his affairs in which a creditor is concerned in pursuance of this Ordinance and such representative shall thereupon for all the purposes of this Ordinance stand in the Sal1le position as the creditor who appointed him But no such appointlnent shall be Inade by way of sale of a debt or chose in action.
When a debtor who has been adjudicated an insolvent dies the court n1ay order that the proceedings in the Inatter be continued 'as if he were alive.
The court l1lay at any tin1e on proof to its satisfaction that proceedings in insolvency ought to be stayed by reason that negotiations are pending for the liquidation of the affairs of the insolvent by arrangement or for the acceptance of a cOlnposition by the creditors in pursuance of the provisions herein con tained or on proof to its satisfaction of any other sufficient reason for staying the san1e 11lake an order staying the sanle either -alto gether or for a liInited tin1e on such tenns and subject to such conditions as the court may think just.
(8.)

(7.)

161.

(1.)

Whenever any adjudication in insolvency Consequ~nces ~~j~di~~~i!n~f is annulled all sales and dispositions of property and payn1ents duly nlade and all acts theretofore done by the Q.

38 Vic.

No.
38 Vic.

No.

5,8.178. trustee or any person acting under his authority or by the court shall be valid but the property of the debt?r who was adj:udged an insolvent shall in such case vest In such person as .the court l11ay appoint or in default of al~y such appointment revert to the insolvent for all hIS .

I nsolvency Ord~ncince.

, 59 estate or interest therein upon such tenus and subject to such conditions if any as the court lllay declare by order (2.)
A copy of the order of the court annulling the Ord~r.

1 11 b f l ' h annullmg 10 e ort lWlt be gazetted.

t' 1· d' f db ' 1 8,C JU lOa Ion 0 a e tor as an Inso vent s la published in the Gctzette and ad vertisecl locally in the prescribed luanner and the production of a copy of the Gazette containing Buch order shall be conclusive evidence of the fact of the adjudication havjng been a.nnulled and of the tenns of the order annuHing the same.

1 d " f -y any onna .

elect or y any uregu anty invalidate 16!2.


(1.)

No proceeding in insolvency shall be Formal l' 1 d b .

I ' defects not to Inva lC ate unless the court before which an objection is 11lade to proceedings.

such proceeding is of opinion that substantial injustioe ~·o~~,~~oi79.

has been caused by such defect or irregularity and that such injustice cannot be renlediecl by any order of such court b (2.)
The court 111ay if it think frt 11lake an order declaring that any such proceeding is valid notwithstand ing any such defect or irregularity.

Evidence.

.

b 1 d d 1 b k I f 163.

The registrar or.

any other person presiding at }ijviden~e of a llleeting of creditors under this Ordinance shall cause £t~~~~i~r lllinutes of all resolutions and proceedings of such meeting of oreditors.

cl -.
lb., s. 180. to e cept an u y entere In a ·00 ant· rom tlllle to time to be duly filed in court and any such luinute as aforesaid if purporting to be signed by the chairman of the llleeting at which such resolutions were passed or proceedings had or a certified copy thereof as herein provided shall be received as evidence in all legal proceedings and until the contrary is proved every general lneeting of the creditors in respect of the proceedings of which minutes have been so 111ade shall be deenled to have been duly held and convened and all resolutions passed or proceedings had thereat to have been duly passed and had.
164.

Any petition or copy of a petition in insolvency Eviden~e of any order or copy of an order m.ade by the court any f~oi~~~l~!~CY.

certificate or copy of a certificate luade by the court in lb., s. 181. insolvency any deed 01' eopy of a deed or arrangement 60 Insolvency Ordinance.
in insolvency and any other instrulnent or copy of an instnllnent affidavit or doculnent Inade or used in the course of any insolvency proceedings or other proceedings had under this Ordinance Inay if any such instrulllent as aforesaid or copy of an instrun1ent appears to be sealed ,yith the seal of the court or purports to be signed by a judge in insolvency under this Ordinance or sealed with the seal of the registry in insolvency under this Ordinance be receivable in evidence in all legal proceedings what ever.
Evidence in insolvency.

Q.

38 Vic.

No.5, s. 182.

IG5.

(1.)

Any evidence or depositions taken before allY exalllining Inagistrate shall be tl~anslnitted to the court .

Shodhand writer.

Ib., s. IS3.

(2.)

Any such evidence or depositions and any other evidence or depositions taken in t.he insolvency shall be achnissible' and n1ay be used in the insolvency as the case lnay require saving.

all just exceptions.

\.

166.


In any case in which any eX~ll11ination of the insolvent or of witnesses is had before the court under this Ordinance the court 111ay on the application of the trust.ee or any creditor (but at the.

expense in the first instance of the party 111aking such application) direct the evidence of the insolvent or witnesses or any of thell1 to be taken down by a shorthand writer; appointed by the court who shall be 'sworn faithfully to report.

the evidence' .
the evidence' .

and in such case a transeript of the shorthand writer's or reporter's notes eertified by hinl to be correct shall be achnitted to prove the oral evidence of the witnesses in the saIne ll1anner as depositions sjgned by thelll Inight be adnlitted.

Death of witnesses.

Ib., s. 184.

Gazett~ to be evidence ..

Ib., s. 186.

167.


In case of the death of the insolvent or his' wife or of a witness whose -evidence bas been taken by the court or an eXall1ining 111agistrate in any proceeding under this Ordinance the deposition of the person so deceased purporting to be.

sealed with the seal 01 the court or to be signed by the exall1ining 111agistrate or a copy thereof purporting to be so sealed or to be so signed shall be adll1itted as evidence of the nlatters therein deposed to.

168.
168.

(1.)

A copy of the Gazette containing any advertiseIllent by this Ordinance or the general rules directed or authorised to be made therein shall be - ..... -.

_.

.._----------.---------_._._-_ .. --- --~---.-.. " .... --" --.----.--.

- --,--' -- ~____ _ ___ ~ ______ · __ ~-c-~--__ -~~---- , 'j-'.

.. ~ -.-.~-.--.- - -~- ~---- ~~~""-.-.,.

'- --" -.- .-.- -- -, ' - . '

'-.~.-,- ---'--'- :1 j ~ ~ I nsolvenoy Ordinanoe.


61 - evidence of any matter therein contained of which notice is so directed or authorised to be given by such advertisement (2.)

All proceedings or notices so directed or authorised to be inserted in the Gazette other than notices by the trustee shall be marked with the seal of the court and certified by the registrar.

M isoellaneou.s.

169.


Where a registrar under the authority of this Ex~enses of qr~inance atten~s at any pl,ace for the purpo~e of ~re- ~~~~~~d~g sIdIng at a meetIng' of eredItors or of otherWIse actIng meetmg~, &c, under this Ordinance his travelling and incidental ~·o~~,~~ci87.
expenses incurred in so doing and those of any clerk or officer attending hiln shall after being settled by the court be paid out of the insolvent's property if sufficient and otherwise shall be dee1ned part of the expenses of the court.

_ 170.

Any person, to Wh01ll anythiIig in action be- Power of longing to the insolvent is assigned in pursuance of this :~!~gnee to Ordinance 111ay bring or defend any action orsuit relating lb., s. 188. to such thing in action in his own na1118.
171. vVhere an insolvent is a contractor in respect of Saving as to any contract jointly with any other person or persons jointcontracts.

suc 1 person .or persons nlay-sue or - e SU'CC In respec 0 such contract without the joinder of the insolvent.

fIb .• s. 189.

I" .

b 1 t 172.


Every deed conveyance assignn1ent or other Exemption of I - · b h assurance relating solely to freehold or leasehold property dteeds fdrom t s amp u y. or to any Inortgage c arge or ot ler 111cun1 ranee on or lb., s. 190'- any estate right or interest in any.
real or personal property which is part of the estate of any insolvent and which after the execution of such deed conveyance assignInent or other assurance either at law or in equity is or remains the estate of the insolvent or of the trustee under the insolvency and every power of attorney proxy paper writ order certificate affidavit bond or other instrument or writing relating solely to the property of any insolvent or to any proceeding under any insolvency shall be exempt from stamp duty except in respect of feef3 under this Ordinance; .
- -- - --------- ------ - --.- .-- -- - ----------- - -------------- --" --------'----~-- .

- 62 Limitation of actions.

Q.

38 Vic.

No.5, 8. un.

Trustee's return of accounts to official trustee.

Ib., s. 193.

Q.

57 Vic.

No.

15, s. 5.

Duty of official trustee.

Q.

38 Vic.

No.5, s. 194.

Q.

57 Vic.

No.

15, s. 4.

Powers of offici!

'),l trtlstee.

Q.

38 Vic .. No.5, s. 195.

Q.

57 Vic.

N~.

15, s.4.

Insolvency Ordinance.

113.


Every action bl"ought against any person for anything done in pursuance of this Ordinance shall be brought withiI).

six nlonths llext after the cause of action has arisen and if it shall appear that th~ -ll1atter C0111- plained of was done by authority of this Ordinance or that such action was brought a.fter the tiIlle liInited as afore said for bringing the sanle the verdict shall be given for the defendant.

Audit.
174- Every elected trustee of an insolvent shall fronl tilne to tilne as nlay be prescribed and not less than once in every six 1l10nths during the insolvency transmit to the official trustee a statel11ent sho'\ving the proceedings in such insolvency up to the date of the stateInent containing the prescribed p,articulars and 11lade out in the prescribed fornl and any elected trustee failing to transnlit accounts in COlllpliance with this section shall be deelned guilty of a conteInpt of court and be punishable accordingly.
.

175.

(1.)

The official trustee shall exanline the state nlents transl1litted to hinl and shall call the elected trustee to account for any nlisfeasance neglect or Olllission which Inay appear on such statelllents and Inay require such trustee to Inake good any loss the estate of the insolvent .lna:y ~lave sustained by such nlisfeasance neglect or onnSSlon _ (2.)
If the elected trustee fail to cOlnply with such requisition of the official trustee the official trustee lnay report the SaIne to the court and the COUJ.l- after hearing -the explanation if any of the elected tn~.btee shall 111ake such.

order in the preInises as it thinks j_1St.

176.

(1.)
176.

(1.)

The official trustee Inayat any tinle require any elected trustee to answer any inquiry nlade by hiIn in relation to any insolvency in which such elected trustee is engaged and Inay if he think fit apply to the court to exailline on oath such trustee or any other person concerning such insolvency .

(2.)

He.

111ay also direct a local investigation to be 111ade of the books and vouchers of such trustee.

Returns of accounts in liquidation to official trustee.

Q.

57 Vic.

No.

15, 8.

7.

177.


The pl~ovisions of the three last preceding sections shall be read and construed as applying to every trustee appointed under Part IX.

of this Ordinanc.e as well as to every trustee appo~nted by the creditors of insolvents.· .

'- .. - .~.,.~.

- .... -...,.,.

... - .. ~-=--....:.....- I nsolvency Ordinance~ 63 178.

(1.)
(1.)

The officers of the court acting in insol- Returns by ven?y shall make to the officia~ trustee such retu:r:ns of the ~ffi~~~:~CY busIness of the court and then offices at such tImes and Q.

38 Vic.

in such manner and fornl as nlay be prescribed by the No.

G, s, 196. rules of court (2.)

The official trustee shall in rnanller prescribed by the rules of court fraJne books which shall be under the regulations of the rules of court open for public jnfornlatioll and searches.

Release of Tr~tstee.

179.


(1.)

When the insolvency is closed the trustee Release of.

h d f l ' 1 shall call a ·Ineeting of the creditors to consider an trustee.

app Icatlon to e rna· e to t e court or lIS re ease 1· · b (2.)
At the meeting the trustee shall lay before the assembled creditors an account showing the manner in which the insolvency has been conducte,d with a list qf the unclaimed dividends if any and of the property if any outstanding and shall inform the meeting that he proposes to apply to the court for release lb.

s. 191 1 (3.)

A copy of such account shall be transmitted by the trustee to the official trustee at least fourteen days before the trustee shall apply to the court for his release (4.)
The official trustee shall 11lake and present to the court a report upon such account and such other Inatters as he may think ought to be so reported (5.)

The creditors assembled at the Ineeting may express their opinion as to the cond"uct of the trustee and they or any of theIn or the official trustee may appear before the court and oppose the release of the trustee" (6.)
The court after hearing what if anything can be urged against the release of the trustee shall grant or withhold the release accordingly and if it withhold the release shall make such order as it thinks just charging the trustee with the consequences of any act or default he Inay have done or made contrary "to his duty and shall suspend his release until such charging order has b~trlJ conlplied with and the court thinks just· to grant thE' release of the trustee, •....

--:~:.
--:~:.

::..~ :...:.:...~.;:-.::::..:,.

--"':-.~ -.-- ..

.

:.--:,:.~~ ._ - --------~-.-~.------>-..-'---..

:- ~---~--.

...,.......-~ 64 I nsolvenoy Ordina·noe.

180.

(1.)

U nclairried dividends and any other moneys Duty of ::nucl~~~d to arising.

fron1 the property of the insolvent relllaining dividends and under the control of the trustee at the close of the 1 f I l l I .

outstanding 111S0 veney 0 any Inso vent or accflung t lerea tel'S la property.
i98 be accounted for and paid over to such account as lllay ~ 3~ Vic .

be directed by rules of, court and any parties entitled ,s. 1 f .

.

o. thereto Inay clahn the saIne in 11lanner directed by such, rules (2.)

The trustee shall also deliver a list of any outstanding property of the insolvent to the prescribed persons and the saIne shall when practicable be got in and applied for the benefit of the creditors ill lllanner prescribed.

181.
181.

The order of the court releasing the trustee of an insolvency shall discharge hiln frOlll all liability in respect' of any act done or default ll1ade by hitn in the adIllinistrat.io11 of the affairs of the insolvent or otherwise in relation to his conduct as trustee of such insolvent but such order 11lay he revoked by theeourt on proof t.hat it \vas obtained by fraud.

U ncla.i1ned D 'iV1~dends.

182.
'Vhere any diviuends l'enlain uncJaiIned for five years the salne shall be deelned vested in the Crown and shall be paid by the trustee into the Treasury to the credit of the Public Revenue Provided that at any tinle a.fter such vesting allY judge of the Central Court l11ay i~l the case of the disability or absence beyond seas of the person entitled to the sunl so vested or for any other reason appearing to hiln sufficient reC011111lend that the said SUlll should be repaid out of 1110ney provided for that purpose.
Effect of release of trustee.

Ib., s. 199.

Forfeiture of dividends after five years' non claim.

lb., s. 200.

Regulations as to liquida tion by arrangement.

lb., s. 202. , PART IX.-LIQUIDATION BY A_RRANGEMENT.

Reg'ulations.

183.

The following provisions shall be lllade wi~h respect to the liquidation by arrangeInent of the affaIrs of a debtot- (1.)
A debtor unable to pay his debts Inay SUlllll1011 a general nleeting of his creditors and such 1l1eeting lnay by a special resolutioll as d~fined , by this Ordinance declare that theaffal1'~ of the debtor are to be liquidated by.

arrange lnent and not in' insolvency and may at ·----- .

~--.-~...,---.

,-,' - -.~ .. -.. -;-.....

"'<.;.--~.-."

'.- , I nsolvenoy Ordinanoe.


that or some subseguent meeting held at an interval of not nlore than a week appoint a trustee with or without a comlnittee of inspection.

, (2.)
, (2.)

All the provisions of this Ordinance relating to -a first Ineeting of creditors and to subse quent meetings of creditors in the case of an insolvency including the description of creditors entitled to vote at such meetings and the debts in respect of which they are entitled to vote shall apply respectively to the first meeting of creditors and to sub sequent meetings of creditors for the pur-.
poses of this section subject to the following modifications-- (a) That every such nleeting shall be presided over by such chairlnan as the lYleeting may elect and (b) That no creditor shall be entitled to vote until he has proved by a statutory declara tion a debt provable ih insolvency to be due to him and the alllount of such debt with any prescribed particulars and any person wilfully lllaking a false declaration in relation to such debt sha.llbe guilty of- a lnisdemeanor.

(3.)
(3.)

The debtor unless prevented by sickness or other cause satisfactory to such meeting shall be present at the nleeting at which the special resolution is passed and shall answer any inquiries made of him and he or .

if he is so prevented from being at such meeting some one on his behalf shall produce to the meeting a statement showing the whole of his assets and debts and the nalnes and addresses of the creditors to whom his debts are due.
(4.~ The special resolution together with the state ment of the assets and debts of the debtor and the name of the trustee appointed and of tbe members (if any) of the committee of inspec tion shan be presented to the registrar and it shall be his duty to inquire whether such .

- 66 Insolvency Ordinance.

(5.)

(6.)

(7.)
resolution has been passed in l1lanner directed by this section but if satisfied that it was so passed and that a trustee has been appointed with or without a conllnittee of inspection he shall forthwith register the resolution and the statenlent of the assets and debts of the debtor and such resolution and statelllent shall be open for inspection on the prescribed con ditions and the liquidation by arrangenlent shall be deel11,ed to have conunenced as frOl11 the date of the appointInent of the trustee.
All such property of the debtor as would if he were Inade insolvent be divisible an long his creditors shall fr0111 and after the date of the appointnlent of a trustee vest in such trustee under a liquidation by arrangmnent and be divisible alnongst the creditoi's and all such .sett~enlents conveyances transfers charges paynlents obligations and proceed ings as would be void against the trustee in t.he case of an insolvency shall be void against the trustee in the case of liquidation by arrangelnent.

\ .
\ .

The certificate of the registrar in respect of the appointlnent of any trustee in the case of a liquidation by arrangenlent shall be of the sanle effect as a certificate of the court to the like effect in the case of an insolvency.
The trustee unde~ a liquidation shall have the saIne powers and perfonn the same duties as a trustee under an insolvency and the pro perty of the debtor shall be distributed in the same lnanner as in an insolvency and with the modification hereinafter Inentioned all the provisions of this· Ordinance shall so far· as the sanle are applicable apply to the case of a liquidation by arrangeJ11ent in the same 111anner as if the word" insolvent" included· .
a debtor whos~ affairs are under liquidation and the word "insolvency"· inclucted liquida tion by arrangelnent and in construing such provisions the appointment of a trustee under a liqp.idation ~hall according to""Circnmstances - - -.- --.'

.

.

- -- - .-.....

-.--- ..... - - - - - -·'·qb ._ - --.,~ "'~=-L---- •.

_ ...• ' ..... .

I I I 67 i nsoivency Ordinance.


be deelned to be equivalent to and a substitute for the presentation of a petition in insolvency or the service of such petition or an order of adjudication in insolvency.

(8.)

The creditors at their first or any general lneeting may prescribe the bank into which the trustee is to pay any Inoneys received by him and the sunl which he Inay retain in his hands.

(9.)
The provisions of this Ordinance with respect to the close of the insolvency discharge of an insolvent to the release of the trustee shall not apply in the case of a debtor whose affairs are under liquidation by arrangenlent but the close of the liquidation may be fixed and the discharge of the debtor and the release of the trustee nlay be granted by a special resolution of the creditors in general lneeting Provided that no trustee shall be released unless his accounts have been audited in the manner provided in subsection (10) of this section.
(10.)

The provisions of this Ordinance with respect Q.

57 ~ViCl to the audit of the aocounts of trilstees elected No.

10, s. 7 by creditors in insolvency shall apply to the case of a debtor whose affairs are under - liquidation by arrangement under this Part of this.

Ordinance.

(11.)
Ordinance.

(11.)

The trustee shall report to the registrar the discharge of the debtor and a certificate of such discharge given by the registrar shall have the same effect as a certificate of dis charge given to' an insolvent under this Ordinance.

(J 2.)

Rules of court lnay be made in relation to proceedings on the occasion of liquidation by arrangement in the same luanner and to the same extent and of the same authority as in respect of proceedings in insolvency.

(13.)
(13.)

If it appear to the C01U·t on satisfactory evidence that the liquidation by arrangement cannot in consequence of legal difficulties or of there being no trustee for the time being or for any su:fficient cause proceed without '.

:..~-.

·_·L' •.

··" 6S Insolvency 01·dinance.


injustice or undue delay to the creditors or to the debtor the court 111ay on the petition of the debtor or of any creditor cOl11petent under this Ordinance to present a petition for adjudication ad.iudge the debtor an insol vent and proceedings nlay be had accordingly.

(14.)

\Vhere no conllnittee of inspection is ap pointed the trustee Inay act on his own dis cretion in cases.

,yhere he would otherwise have been bound to refer to such cOllllnittee.
H egistratioli of resolutions of creditors conclll~ive in, certain cases.

Q.

38 Vic.

No.5, s. 203.

184.


The registration by the registrar of a special resolution of the creditors on the occasion of a liquida tion by arrangelllent under this Part of this Ordinance shall in the absence of fraud be conclusive evidence that such Tesolution was duly passed and all the requisitions of this Ordinance in respect of such resolution cOlllplied ,,,ith but any such registrat.ion Ina.y nevertheless be dis charged by the court upon the application of any creditor upon sufficient cause shown.
P AR.T X.-COMPOSITION \VITH CREDITOR.S.

:Regulatii)!l~as to composItIOn I' d' bt by creditors.

Ib., s. 204.

'tl 185.

(1..) The creditors of a debtor unable to pay .

b lIS e -S Inay ,~TI lOUt any proceec 111gs In Inso vency y an extraordina.ry resolution resolve that a COl1Iposition shall be accepted in satisfaction of the debts due to theIl1 fr01n the debtor 1 1" .

(2.)
An extraordinary resolution of creditors shall be a resolution which ha:s been passed by a Inajority in nUl1Iber and three-fourths in value of the creditors of the debtor aSSeInbled at a general Ineeting to b~ held in the Inanner prescribed of which notice has been given in the prescribed Inanner and has been confirIned by a Inajority in llU111ber and value of the creditors asseI11bled at a subsequent generalI11eeting of which notice has been given in the prescribed nIanner and held at an interval of not less than seven days nor nIore than fourteen days fr0111 the date of the 111eeting at which such resolution was first passed (3.)
In calculating a Inajority for the purposes of a cOl11position under this section the value of the debts of secured creditors shall as nearly as circumstances admit ."

Insolvency Ord-inance.

.. be estilnated in the SaIne way and the sanle description of creditors shall be entitled to vote at such general Ineetings_as in insolvency (4.)
The debtor unless prevented by sickness or other ca.use satisfactory to such n1eetings shall be present at both the Ineetings at which the extraordinary resolution is passed and shall answer any inquiries made of him and he or if he is "SO prevented fron1 being at such Ineetings SOllleone on his behalf shall produce to the 111eeting a statelnent showing the whole of his assets and debts and the nalnes and addresses of the creditors to whOln such debts respectively are due (5.)
The extraordinary resolution together with the staten1ent of the debtor as to his assets and debts shall be presented to the registrar and it shall be his duty to inquire whether such resolution has been passed in Inanner directed by this section and if satisfied that it ha.s been so passed he shall forthwith register the resolu tion and stateIllent of assets and debts but until such registration has taken place such resolution shall be of no validity and any creditor of the debtor Illay inspect such statelllent at prescribed tilnes and on paYInent of such fee i~ any as may be prescribed " (6.)
-:Before any such registration shall be Illade the debtor shall n1ake oath that he ha.s fully and truly to the best of his knowledge disclosed all his assets and "liabilities and the n~unes of his creditors and the amount of their debts and that he has not granted or promised apy payn1ent or security or Inade or pron1ised any prefer ence of any creditor or entered into any collusive agree Inent for the purpose of obtaining assent to the resolution and such oath shall be presented to the registrar and be registered with the resolution " (7.)
The creditors nlcl,y by an extraordinary resolu tion add to or vary the provisions of any COlllposition previously accepted by them without prejudice to any persons taking interests uncl~r such provisions who do not assent to such addition or variation and any such extraordinary resolution shall be presented to" the registrar in the same nlanner and with the same con sequences as the extraordinary resolution by which the composition was accepted in the first instance (8.)
The provisions of a com.position accepted by an extraordinary resolution in pursuance of this section shall I . '

- " .

.

'.

__ • .

- r - , - , - - - - - - .. - - - - '·"'J:-;iC""",-~._'L'" .

__ ,_ , 10 Insolvency Ordinance.

.. be binding on all the creditors whose nalnes and addresses and the anlount of the debts due to whonl are shown in the stateInent of the debtor produced to the lneetings at which the resolution has passed but shall not affect or prejudice the rights of any other creditors (9.)
Wlwre a debt arises on a bill of exchange or pr01nissory note if the debtor is ignorant of the holder of any such bill of exchange or pr01nissory note he shall be required to state the alllount of such bill or note the date on which it falls due the nanle of the acceptor or person to Wh0111 it is payable and any other particulars vvit4in his kno\vleclge respecting the SaIne and the inser tion of such particulars shall be deeIned a sufficiellt description of the creditor of the debtor in respect of such debt and any.
lnistake lllade inadvertently by a debtor in the stateInent of his debts 11lay be corrected after the prescribed notice has been given with the consent of a general llleeting of his creditors.

(10.)

The provisions of any COl1lposition nlade in pur suance of this section lnay be enforced by the court on a lllotion lnade in a SUll111lary 11lanner by any person interested and any disobedience of the order of the COllrt lnade on such nlotion shall be deeI1led to be a conteInpt of court .

(11.)
(11.)

Rules of court lllay be 11lade in relation to pro ceedings on the occasion of the acceptance ofa C0111- position by an extraordinary resolution of creditors in the same lnanner and to the saIne extent and of the sanle authority as in respect of proceedings in insolvency (12.)
If it appear to the court on satisfactory evidence that a c011lposition under this section cannot in consequence of legal difficulties or for any sufficient cause proceed without injustice or undue delay to the creditors or to the' debtor the court lnay adjudge the.

lnay be had debtor an accordingly.

insolvent and proceedings Registration of resolution - conolusive.

Q.

38 Vic.

No.5, s. 205.

186.


The registration by the l'cgistrar of an extl:a ordinary resolution of the creditors under this Part of the Ordinance shall in the absence of fraud be conclusive evidence that such resolution was duly passed and' all the reqi.,isitions of this Ordinance iIi respect thereof complied Insolvency Ordinance.

71 with but any such registration may nev~rtheless be set aside or discharged by the court upon the application of any creditor upon sufficient cause sho~vn.
PART XL-OFFENCES.

187.

Where a debtor Inakes any al'rangelllent or pebts C0111position with his creditors under the provisions of l;;,cf;~~~.

this Ordinance he shall remain liable for the unpaid Q.

38 Vic.
38 Vic.

balance of any debt which he incurred or increased or No.5, s. 215. whereof before the date of the arrangement or con1- position he obtained forbearance by any fraud provided the defrauded creditor has not assented to the arrange- lllent or composition otherwise than by proving his debt and accepting dividends.

- 188.
- 188.

Where a trustee in any insolvency reports to Ol'der by the court that in his opi~lion a~l insolvent has been guilty ~~~~::~:ion of any offence under thIS OrdInance or under any of the on report of provisions of Chapter LIIL of the Crhninal Code or %~1~~~e217.

where it is represented to the court by any creditor or ill_ember of the comlnittee of inspection that there is .
ground to believe that the insolvent has been guilty of any offence under this Ordinance or under any of the said provisions of the Criminal Code the court shall if it appears to the court that such report or representation is true and that there is a reasonable probability that the insolvent Inay be convicted order the trustee to prosecute the insolvent for sp.ch oifence and may hold the insolvent to bail to appear before a justice of the peace to answer the charge to be preferred against hiln for such offence.
189.

(1.)

Where the prosecution of an insolvent Wh under this Ordinance is ordered by the court or where pros~~ution the insolvent is comlnitted for trial by order of the court ~~~~~~~;:nse then on the production of the order of such court all the tbo bteheboor~oe expenses of the prosecutIon shall be paId and borne by Ib., R. 218. the Crown I wn.

y • • (2.)

In other cases the expenses of the prosecution When of an insolvent for an offence under this Ordinance up ~~~S~~dl:~~d.
to the tin1e of his commitn1ent for trial shaH be paid and bor!1e by the person or persons instituting such prose- cutIon.

.

! )

I -I I nsolvency O?~dinance.

Punishments under t.his Ordinance cumulative.

Q.

38 Vic.

No.5, s. 221.

190.


Where any person is liable under any other Ordinance to any punishlnent or penalty for any offence lnade punishable by this Ordinance such person nlay be 'proceeded against ulider such other Ordinance or under this Ordinance so that he be not punished twice for the salne offence.

Passed in Council this simteenth day of July, in the yea?'

of 01,(,1' Lord one tlw·nsand nine hundrr'ed and twelve.

SCHEDULE.

Number of Enar.tment referred to.

Short Title.

Extent of Repeal.


38 Vic.

No.5 (Queensland Adopted) I "'l'he Insolt'Cncli Act of 1871" ... .

..

The whole.

40 Vic.

No.

12 (Clueenshtnd Adopted) 1 "The Insnl'/.oenclJ Act Am.endment Act The whole.

~~ro" VIII.

of 1900 ... ... ... .

.. \ " The Insoll.

'cnr,U Ordlnan,c·e (if 1900" The whole.

- Printed for the Government .of Papua by AN'l'HONY JAMES CUMMING, Governnwnt Printer- for the State of Queensland.

-~~-=--~------ -- .-- -- =--~~~~-~~~~=-~-=--~--=--=-=-=--~-~-=-- _.-.
Marriage Ordinanoe.

13 I" SIXTH SCHEDULE.

Form of Consent of Parents or Guardians to )Jfarriage of Minors.

r See section 21.]

I [name of parent or guardian] do hereby give my consent to the ma,rriage of my son [daughter or ward ancl give the name of such son da1.tghter or ward at full length] aged [state age] to [na1ne of intended bride or bridegroom at full length J.
Dated this day of 19 Signature of parent or guardian: Signature of attesting magistrate registered minister or district registrar: Signature of .offic~ating minisiti&' or, disrtrict registrar or 'authorised juSJtioo : SEVENTH SCHEDULE.

Form of Consent of Just-ice of the Peace.

[See seotion 21.]
[See seotion 21.]

I [name] being a magistrate duly appointed to give consent to the marriage of mino'l"s. do in the a,bsence of parent or other duly constituted legal guardian give my oonsent to~ the marriage of [name at full length J whose age is represented to be [agtl'] to.

[name at full length].

Dated this day of 19 Signa~ure of magistrate: Printed for the Government of Papua by .ANTHONY JAMES CUMMING, Government Printer for the State of Queensland.