3.3 The Commonwealth of Australia
To be eligible to apply to become bankrupt in Australia, the debtor must be personally present or ordinarily resident in Australia; or have owned a house or business, or have carried on a business, in Australia at the time of lodgment. §55(2A) Bankruptcy Act 1966. There are no income, asset or debt limits for bankruptcy. The debtor's petition may be rejected if the debtor is considered to be able to pay all his or her debts within a reasonable time and either the debtor has previously been bankrupt three or more times or once in the last five years or the debtor is unwilling to pay one or more creditors or creditors in general. §55 (MA). The debtor needs to complete the following three documents with the Insolvency and Trustee Service Australia (ITSA) Office (ITSA is a commonwealth government agency) : Debtor's Petition, Statement of Affairs which includes information about debtor's income, assets, debts, and business dealings, and Acknowledgement that the debtor has received and read the Prescribed Information booklet which gives details about alternative options to bankruptcy and the consequences of bankruptcy. § 5 5 (1) (2) (3). When the debtor's petition is accepted by ITSA, the debtor becomes bankrupt within one day. §55(4A). A trustee will administer the bankruptcy. ITSA will be a trustee unless a registered trustee has consented to be the debtor's trustee. All of the bankrupt's divisible property vests in the trustee which they will sell. $58(1 ), 116. The trustee will work out if the debtor is required to make income contributions to help repay the creditors. The requirement to make contributions depends upon current or expected level of income, number or dependents, and payment of any support. Low income earners are not required to make income contributions. § 139 P. Concerning fees and expenses, the trustee, whether a registered trustee or ITSA, is paid for administering a bankruptcy case. ITSA's fees are set out in the Bankruptcy Act and are normally at least $4,500. They will only be paid (in full or part) if money is received from the sale of the debtor's assets or the debtor's income contributions. Registered trustees usually charge an hourly rate. If the trustees do not receive enough money to pay their fees, they are allowed to recover from the debtor at least a minimum fee of $1,347. The bankrupt is entitled to keep exempt assets such as most ordinary household or personal items, tools used to earn an income, vehicles used mainly for transport, etc. $116. Upon bankruptcy, a creditor is not competent to enforce any remedies against the person or the property of the bankrupt in respect of a provable debt or to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding. $58(3)(a)(b). The debtor will normally be automatically discharged from bankruptcythree .years and one day from the date the debtor's Statement of Affairs was lodged with and accepted by ITSA. If the debtor fails to cooperate with the trustee, the bankruptcy may be extended to a maximum of eight years. § 149, 149A. With regard to the effect of discharge, a discharge releases the debtor from all the debts (including secured debts) provable in the bankruptcy but the debtor will not be freed from paying a debt on a recognizance, liability to pay income contributions to the estate, a debt incurred by means of fraud, etc. § 153.3
3.4 Canada
If the debtor decides to become bankrupt, the trustee will help the debtor complete several forms which the debtor has to sign. The debtor has to sign at least two forms. One is an "Assignment", and the other is a "Statement of Affairs", An assignment is a form in which the debtor states that he or she is handing over all of his or her property to the trustee for the benefit of his or her creditors. A statement of affairs is a form that outlines the estimated value of the debtor's assets, lists all the debtor's creditors and the amount owed, along with the reasons for the debtor's financial difficulties. In the statement of affairs, the debtor must also declare any gifts, donations, seizures, sale or other disposition of property that occurred prior to the date of bankruptcy. Subsequently, the debtor will fill out a Monthly Income and Expense Statement, a financial statement summarizing the items of revenue and expenses for a stated period. The insolvent debtor will have to answer questions about his or her employment and family. The debtor has a duty to accurately report all information required by the Bankruptcy and Insolvency Act. These forms can be filed by the trustee by fax or electronically via a system known as E-Filing. The debtor is considered a bankrupt only when the trustee files these forms with the Office of the Superintendent of Bankruptcy. These forms are delivered to the Official Receiver, a federal government employee and Court officer appointed by the Governor in Council. The bankruptcy process cannot be reversed without a Court order. The official receiver delivers a certificate of appointment, examines the bankrupt under oath and officially appoints the trustee to administer the debtor's' estate. The official receiver is also
responsible for supervising the trustee administering the bankrupt's estate, responding to
complaints, conducting audits and working with the police to investigate serious bankruptcy
offences. Generally, a meeting of creditors is not necessary but there may be instances
where such a meeting will be held. If a meeting is called, the trustee will provide a report about the debtor's assets and liabilities and creditors may ask the debtor related questions. The creditors will then vote to either confirm the trustee's appointment, or substitute a trustee of their choice. The creditors may also give directions to the trustee with reference to the, administration of the estate. The trustee will be responsible for the realization of the debtor’s assets, a process by which the trustee sells the debtor's property and distributes the proceeds among the creditors. There is a filing fee to be paid to the Superintendent of Bankrunkruptcy. In addition, the trustee is entitled to be paid. These fees are prescribed by the and the The Bankruptcy and Insolvency Rules.4 The bankrupt is required to make payment to his or her trustee for distribution to creditors. The income of the individuals living within the same household as the debtor will therefore be taken into consideration in order to determine the amount, if any, that the bankrupt debtor will have to pay.5 There will be an automatic discharge for first-time bankrupts nine months after they became bankrupt unless the trustee recommends a discharge with conditions or it is opposed by either a creditor, the trustee or the Superintendent of Bankruptcy. Nonetheless, a first-time individual bankrupt who refuses or neglects to receive the required counseling sessions will not qualify for an automatic discharge. For ,those who have already been bankrupt before or who do not qualify for the automatic discharge, the trustee is required within one year from the beginning of the bankruptcy to apply to the court for a hearing of the application for a discharge. The court official has several options from which to choose: order of absolute discharge, order of conditional discharge and order of suspended discharge. If the absolute discharge is granted, it releases the bankrupt of the debts incurred before the date of bankruptcy and owed to creditors who have filed a proof of claim with the trustee. Section 178 of the Bankruptcy and Insolvency Act lists some exceptions to this rule, such as awards for damages in respect of an assault, a claim for alimony, spousal or child support, debts arising out of fraud, Court fines, or obligations for student loans when the bankruptcy occurs while the debtor is still a student or within ten years after the bankrupt has ceased to is a student.6
4. Proposal, of proceedings for voluntary debtor's petition under Thai Bankruptcy Act B.E. 2483 (A.D. 1940)
After studying the laws concerning voluntary bankruptcy for individual debtors in the United States of America, United Kingdom, Commonwealth of Australia, and Canada, there are a number of issues to be considered before the recommendation on the amendment of the present Thai Bankruptcy Act be proposed.
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