Remuneration Provisions: Historical Comparison Table

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Remuneration Approval

Insolvency Law Reform Act 2017 – post 1 September 2017 Bankruptcy Law Amendment Act 2010 – post 1 December 2010 Before Bankruptcy Law Amendment Act 2010 before 1 December 2010

Creditors:

  • By ordinary resolution passed at a meeting of creditors on a proposal relating to remuneration
  • If there is a committee of inspection appointed, by the committee of inspection where a determination is not made under a meeting of creditors
  • By ordinary resolution passed by creditors on a proposal considered without a meeting of creditors
  • Legislation:

Rule 60-5 and 60-10 of the Insolvency Practice Schedule Section 75-40 of the Insolvency Practice Schedule

A determination made by the Inspector-General

  • By application from registered trustee to the Inspector-General

Legislation:

Section 60-11 and 60-12 of the Insolvency Practice Schedule

Creditors:

  • By ordinary resolution passed at a meeting of creditors on a proposal relating to remuneration
  • If there is a committee of inspection appointed, by the committee of inspection where a determination is not made under a meeting of creditors
  • By ordinary resolution passed by creditors on a proposal considered without a meeting of creditors

Legislation:

Former section 64U of the Bankruptcy Act 1966 Former section 64ZBA of the Bankruptcy Act 1966 Former section 70 of the Bankruptcy Act 1966

A determination made by the Inspector-General

Legislation:

Former Regulations 8.09 – 8.11 of the former Bankruptcy Regulations 1966

Former section 162(4) of the Bankruptcy Act 1966

Creditors:

  • By ordinary resolution passed at a meeting of creditors on a proposal relating to remuneration
  • If there is a committee of inspection appointed, by the committee of inspection where a determination is not made under a meeting of creditors
  • By ordinary resolution passed by creditor on a proposal considered without a meeting of creditors

Legislation:

Former section 64U of the Bankruptcy Act 1966
Former section 64ZBA of the Bankruptcy Act 1966
Former section 70 of the Bankruptcy Act 1966

IPAA Scale:

In accordance with the scale of charges set by the

IPAA Guide to Hourly Rates published by IPAA (as ARITA was known then) at the level of 85% of those charges

Legislation:

Former Regulations 8.08 of the former Bankruptcy Regulations 1996 [before 1 December 2010]

Application:

Where administration of the regulated debtor’s estate commences on or after 1 September 2017;

Ongoing administrations as at 1 September 2017 (i.e. administrations commenced before 1 September 2017 and continuing after that date), but only in respect of trustees who were appointed or consented to act in those administrations on or after 1 September 2017.

Legislation:

Items 127 and 128 of Part 3 of Schedule 1 to the Insolvency Law Reform Act 2016 – Transition to the Insolvency Practice Schedule (Bankruptcy) (‘the Transitional Provisions’)

Application:

Where the commencement of the administration is before 1 September 2017 and is not ongoing on or after 1 September 2017.

Ongoing administrations as at 1 September 2017, in respect of trustees who were appointed or consented to act in those administrations before 1 September 2017.

Legislation:

Item 128 of the Transitional Provisions

Application:

Where the commencement of the administration is before 1 December 2010.

Maximum Default Remuneration

Insolvency Law Reform Act 2017 – post 1 September 2017 Bankruptcy Law Amendment Act 2010 – post 1 December 2010 Before Bankruptcy Law Amendment Act 2010 before 1 December 2010

$5,388 indexed (exclusive of GST)

*as at August 2020, updated every financial year. Legislation:

s60-15 of Schedule 2 of the Bankruptcy Act 1966

$5000 plus 8.4% i.e. $5420 inclusive of GST Legislation:

Former section 161B of the Bankruptcy Act 1966 [as it was from 1 December 2010 to 31 August 2017]

$1,938 exclusive of GST*

*as at August 2020, amount updated quarterly Legislation:

Former section 161B of the Bankruptcy Act 1966 [before 1 December 2010]

Application:

Where the trustee is appointed, or consents to act, on or after 1 September 2017 onwards regardless of when the administration commenced.

The amount (as indexed) in the financial year in which the trustee is appointed applies regardless of when the administration commenced Legislation:

Item 129 of the Transitional Provisions

Application:

Where the trustees is appointed, or consented to act before 1 September 2017 for an administration which commenced on or after 1 December 2010.

Legislation:

Item 129 of the Transitional Provisions

Application:

Where the trustee is appointed or consents to act before 1 September 2017 for an administration which commenced before 1 December 2010.

Determining Remuneration for Trustees Acting in Succession

Insolvency Law Reform Act 2017 – post 1 September 2017 Bankruptcy Law Amendment Act 2010 – post 1 December 2010 Before Bankruptcy Law Amendment Act 2010 before 1 December 2010
  • The former and new trustee agreeing on remuneration that the former trustee is entitled to receive for necessary work properly performed; and
  • Creditors, by resolution, endorse that agreement, and are taken to have made a determination under section 60-10 of the Insolvency Practice Schedule

Legislation:

Item 132 of the Transitional Provisions

Section 60-10 of the Insolvency Practice Schedule

To be divided between the trustees, if necessary, on a basis:

  • That they agree on; and
  • That is endorsed by a resolution passed at a meeting of creditors.

Legislation:

Former section 164 of the Act [as it was before 1 September 2017]

To be divided between the trustees, if necessary, on a basis:

  1. That they agree on; and
  2. That is endorsed by a resolution passed at a meeting of creditors.

Legislation:

Former section 164 of the Act [as it was before 1 September 2017]

Application:

Where the former trustee was appointed, or consented to act, before 1 September 2017 and the new trustee is appointed, or consents to act, on or after 1 September 2017

Legislation:

Item 132(2) of the Transitional Provisions

Where both trustees are appointed post 1 September 2017, trustees can still agree between themselves and put a proposal to creditors

Application:

Where both the former and new trustee was appointed, or consented to act, before 1 September 2017

Legislation:

Item 132(1) of the Transitional Provisions

Application:

Where both the former and new trustee was appointed, or consented to act, before 1 September 2017

Remuneration Notification Reports

Insolvency Law Reform Act 2017 – post 1 September 2017 Bankruptcy Law Amendment Act 2010 – post 1 December 2010 Before Bankruptcy Law Amendment Act 2010 before 1 December 2010

Initial Remuneration Notice

An IRN is sent:

  • For Bankruptcy – within 20 business days after receipt of the statement of affairs. Where the statement of affairs has not been received, within 7 days after 60 days after the date of bankruptcy
  • For PIA where trustee was not CT – within 20 business days after the day the agreement is executed

Legislation:

Rule 70-35 of the Insolvency Practice Rules

Remuneration Approval Report

An RAR is sent if the trustee’s remuneration is to be approved by creditors (or a committee of inspection):

  • where a proposed remuneration determination is put to creditors at a meeting - at same time as notice of meeting given
  • where a proposed remuneration determination is put to creditors without a meeting – at the same time as notice of the intention to put the proposal without a meeting is given

Legislation:

Rule 70-45 of the Insolvency Practice Rules

Remuneration Claim Notice

An RCN is sent when a regulated debtor or creditor elects to receive an RCN (election must be made within 20 business days after receiving an RAR). The RCN then sent before finalising the administration.

Legislation:

Rule 70-47 of the Insolvency Practice Rules

Initial Remuneration Notice

An IRN is sent:

  • For bankruptcy - within 28 days receipt of the statement of affairs. Where the statement of affairs has not been received, within 7 days after 60 days after the date of bankruptcy
  • For PIA where trustee was not CT – within 28 days after the day the PIA is executed

Legislation:

Former Regulation 8.12A of the former Bankruptcy Regulations 1996 [as it was from 1 December 2010 but before 1 September 2017]

Remuneration Approval Notice

An RAN is sent if the trustee’s remuneration is to be approved by creditors (or a committee of inspection) at the same time as seeking that approval (but note RAN not required if PIA trustee was also controlling trustee for the debtor who executed the PIA)

Legislation:

Former Regulation 8.12B of the former Bankruptcy Regulations 1996

Remuneration Claim Notice

An RCN is sent within 14 days of occurrence of any of the following events:

  • When the remuneration claimed reaches the amount approved pursuant to the RAN for the relevant time period; or
  • Where the remuneration has not reached the approved amount:
    • at the time the trustee declares a final dividend; or
    • at the time the administration of the estate is finalised and the trustee determines that no final dividend will be declared; or
  • When the trustee claims the statutory minimum or less under former section 161B.

Legislation:

Former Regulation 8.12C of the former Bankruptcy Regulations 1996

No title given to the notices required to be given, and no time period specified in which notices must be given. However, trustees must give notices that include:

  • The basis and the method on which the trustee seeks to be remunerated, and, if appropriate, an estimate of the expected level of the trustee’s remuneration;
  • If the trustee claims remuneration calculated by reference to an hourly rate, a notice to include type of work, hours, hourly rate, total remuneration— a notice that includes:
  • A notice advising the bankrupt and creditors of their right, within 28 days of receiving notice of a trustee’s claim for remuneration, to request the claim be taxed.

Legislation:

Former Regulation 8.12 of the former Bankruptcy Regulations 1996 [before 1 December 2010]

Application

Administrations of a regulated debtor’s estate commencing on or after 1 September 2017, and ongoing administrations at this date, regardless of the date the trustee was appointed or consented to act.

Legislation:

Item 129 and 141 of the Transitional Provisions

Application:

Where the commencement of the administration is before 1 September 2017 and on or after 1 December 2010.

However, for ongoing administrations, any notices relating to remuneration given on or after 1 September 2017 must comply with the regime established under the ILRA.

Legislation:

Item 129 of the Transitional Provisions which provides that former 162(6A) of the Act (relating to notices required to be given by the trustee in relation to remuneration) does not continue to apply in relation to the remuneration where the trustee is appointed, or consents to act, before 1 September 2017.

 

Remuneration Review

Insolvency Law Reform Act 2017 – post 1 September 2017 Bankruptcy Law Amendment Act 2010 – post 1 December 2010 Before Bankruptcy Law Amendment Act 2010 before 1 December 2010

Application to the Inspector General by a regulated debtor or creditor of the regulated debtor’s estate.

The application is made in writing, and if the regulated debtor or creditor has elected to receive an RCN, within 20 business days after the RCN is received; or If there was no election, within 20 business days after the end of the administration of the estate

“End of the administration” means:

  • the day on which the bankrupt is discharged or annulled, whichever happens first
  • For a Part X – the day 3 years after the day on which a PIA made by the debtor took effect
  • For a Part XI – the day 3 years after the day on which the administration is taken to have commenced under section 247A

The Inspector-General may extend this period for a period considered appropriate in the circumstances. This decision is reviewable by the Administrative Appeals Tribunal.

The Inspector-General carry out a review of remuneration on his or her own initiative.

Legislation:

Section 90-21 of the Insolvency Practice Schedule

Division 90 of the Insolvency Practice Rules Section 5-5 of the Insolvency Practice Schedule

See ‘Remuneration Reviews’ under post Insolvency Law Reform Act 2017. See ‘Remuneration Reviews’ under post Insolvency Law Reform Act 2017.

Application:

Any application for review carried out by the IG on or after 1 September 2017, whether or not remuneration is paid or payable, cost or expense is current or paid, or funds were withdrawn or proposed to be withdrawn at this date.

Legislation:

Item 162 of the Transitional Provisions

Application:

Any application for review carried out by the IG on or after 1 September 2017, whether or not remuneration is paid or payable, cost or expense is current or paid, or funds were withdrawn or proposed to be withdrawn.

Legislation:

Item 162 of the Transitional Provisions

Application:

Any application for review carried out by the IG on or after 1 September 2017, whether or not remuneration is paid or payable, cost or expense is current or paid, or funds were withdrawn or proposed to be withdrawn.

Legislation:

Item 162 of the Transitional Provisions