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Guidance – Practitioner Registration
Bankruptcy (Registration and Cancellation of Registration of a Debt Agreement Administrator) Guidelines 2020.
Note: The fit and proper person and insurance requirements (described in the Guidelines at 3.13 and 3.14 respectively) apply only to practitioners who are first registered, or renew their registration, on or after 27 June 2019.
Guidance – Practitioner Registration
AFSA has published a range of case studies to showcase examples of best practice from the insolvency sector. The case studies are real-life examples displaying best practice in culture, integrity and moral compass, and support public confidence in the personal insolvency system.
We expect to continue to build our library of best practice case studies on this page over time.
Case study 1: Navigating complex issues
In 2017, a person in debt (Ms A) was made bankrupt following a sequestration order issued in the Federal Circuit Court of Australia.
At the time of bankruptcy, Ms A owned a property that was subject to a restraining order under the Confiscation Act 1997. The restraining order was granted to protect the interests of a creditor (Ms G). Ms G was the petitioning individual who was owed money under a compensation order.
Under section 58A(1) of the Bankruptcy Act 1966, as a restraining order was placed on the property, the vesting provisions of section 58(1) did not apply and the property did not vest in (or become the property of) the trustee. In order for the registered trustee to deal with the property for the benefit of Ms G, the restraining order would need to be lifted.
The matter involved sensitive and complex issues including extensive negotiations about the property and how it might be realised for the benefit of Ms G. This resulted in a deed which provided for the removal of the restraining order and the vesting of the property in the registered trustee. The deed also made provisions to maintain Ms G’s priority to proceeds of the property upon the lifting of the restraining order.
The deed specified that when the restraining order lifted, the trustee would secure and transmit the title of the property, and with Ms G’s consent, sell the property. The deed also stated that Ms G would lodge a caveat over the property to secure her interest before its sale, with the caveat withdrawn before settlement. Following the sale of the property less any costs incurred, Ms G received payment as well as penalty interest.
The trustee considered Ms G’s extremely complex situation and proactively took steps to limit the remuneration and other expenses (including legal fees) to $35,000, noting that the full remuneration and expenses well exceeded $84,000.
Case study 2: Acting in the best interests of bankrupt individuals and creditors
In 2014, a person in debt (Mr J) was declared bankrupt following a sequestration order issued in the Federal Circuit Court of Australia. Mr J was subsequently discharged from bankruptcy in mid-2017.
At the time of bankruptcy, Mr J owned a real property that consisted of two dwellings on one title. The real property had a mortgage and two caveats registered against the title of the property.
At the time of his appointment, the registered trustee assessed the real property and found that there was no equity. However, the trustee lodged a caveat against the title of the property to protect the estate’s interest in the real property.
After conducting semi-regular assessments of the value of the real property in 2020, given the significant increase in property prices, the trustee wrote to Mr J advising that he would take possession of the vacant property. The letter specified that if the real property was not vacated, legal proceedings would commence. In response, Mr J proposed subdividing the real property to create two separate titles, proposing that one lot be sold to annul his bankruptcy under section 153A of the Bankruptcy Act 1966 by payment of his creditors (who were owed money) in full, including costs and interest (if applicable).
After conducting a review, the trustee agreed and authorised Mr J to proceed with the subdivision of the real property and agreed that the costs associated with the subdivision (that were being provided by a family member), would be reimbursed upon settlement.
Following the sale of the subdivided lot, the estate was annulled in 2021 with a surplus amount paid to Mr J. In addition, Mr J was able to retain the second lot and residence.
This was a great outcome for all involved and demonstrates a successful use of the trustee’s broad powers under Section 134 of the Bankruptcy Act 1966. The trustee listened to the debtor’s proposal, allowed Mr J to take the initiative in a step towards returning to financial security on his own behalf that ultimately resulted in an annulment. By doing so, the trustee was able to maximise the value of the property and also able to limit his costs in the estate.
Case study 3: Enabling positive change
A registered trustee volunteers for a domestic violence charity. The trustee was involved in a matter through the charity where a debtor (person owing money) (Ms K) had debts exceeding $315,000. The registered trustee negotiated with the creditors (who were owed money) to facilitate the writing- off of the debts on compassionate grounds.
One creditor was owed approximately $180,000. With the assistance of the creditor’s lawyer, who was sympathetic to Ms K’s requests, they reached a settlement whereby the creditor agreed to accept a single payment of $11,600 in full and final settlement of the debt, with the funds coming from Ms K’s family and friends. All other creditors agreed to write off the debts in full. As a result, Ms K no longer faced bankruptcy.
The trustee said, ‘While I may not have received a cent for helping this individual; the reward I have received is seeing the positive change in this debtor over the last six months.’
This is a great example of a registered trustee undertaking pro- bono work for a domestic violence charity. If Ms K had declared bankruptcy, the trustee stated they would have consented to act on a pro bono basis.
For further information concerning domestic violence volunteering, please contact Helen Joyce (Registered Trustee) on h.joyce [at] bluestoneadvisory.com.au
Case study 4: Making mental health a priority
By Shabnam Amirbeaggi, Registered Trustee & Registered Liquidator.
Board Member, Association of Independent Insolvency Practitioners
I am delighted that our profession continues to improve its focus on the mental health of those impacted by financial hardship and insolvency.
For too long we have focused on the numbers, and not on the people behind the numbers.
The statistics in 2020 show that 1 in 3 small business owners in Australia were diagnosed with a mental health issue arising from financial stress. This is an enormous problem facing our stakeholders as a whole.
I completed the Counting On U mental health aid course last year, and I am now a certified Mental Health First Aider. The course has given me more confidence to have the conversation when mental health issues are identified, and know what options are available for debtors and creditors who are seeking help.
It feels good to have added this skillset to the service I provide as a registered trustee. I encourage our profession to continue to improve our offering in this area for those we help daily.