BANKRUPTCY LAW!

Globe, Volume XXIV, Issue 2615, 24 August 1882, Page 3

BANKRUPTCY LAW!

IBt Telegraph.]

WELLINGTON, August 23. The new Bankruptcy Bill is just circulated. It is a tremendously bulky document of fifty pages and 210 clauses. Glancing through it, the chief new provisions seenfTto be as fallows :—There shall be a Court of Law and of Equity, and a Court of Eccord, called the Court of Bankruptcy (hereinafter referred to as “ The Superior Court”), which shall have jurisdiction throughout the colony iu all matters of bankruptcy or pertaining thereto. For convenience of administration the judicial districts established for the purposes of the Supreme Court, as they may from time to time exist shall have jurisdiction and be local Courts of Bankruptcy ; but notwithstanding anything in this Act, the Governor in Connell may from time to time exclude any District Court from having jurisdiction in bankruptcy, and for the purposes of bankruptcy jurisdiction may attach the district within its ordinary jurisdiction or any parts thereof to any other District Court or Courts, and may from time to time revoke or alter any order so made. Every Court having jurisdiction in bankruptcy and the officers of snob Courts respectively shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy, and an order of the Court seeking aid, together with a request to another of the said Courts shall be deemed sufficient to enable tho latter Court to exercise in regard to the matters direct and by inch order the like jurisdiction which the Court which made the request, as well as the Court to which the request is made, could exercise in similar matters within their respective jurisdiction. No such Coart shall be subject to be restrained in the execution of its powers under this Act by the order of any other Court, nor shall any appeal be from its decision except in the manner directed by this Act. Questions of law may be reserved for the superior Court, and issues of fact may be tried before a jury. The proceedings may be transferred to another Court on tho creditors’ application. The decisions in bankruptcy matters are subject to appeal as follows :'An appeal shall be from the decision of a local Court to the superior Court, and no farther, unless the Judge hearing the appeal permits a further appeal to two Judges of the Supreme Court. (2) An appeal shall be from the decision of the superior Court to two Judges of the Supreme Court and no further, unless the Judges bearing the appeal permit a farther appeal to the Court of Appeal in oases where the assets of the estate exceed in value £3OO. (3) The decision of the Court of Appeal shall be final. (4) No appeal shall be entertained under this Act except in conformity with such rules of Court as may for the time being be in force in relation to the appeal. The time of the appeal is limited to twenty-one days from the data of the decision to be appealed from, but the Court appealed to may, if it thinks fB, order the proceedings to be stayed. The Court appealed to may in any case, either on the motion before the hearing of an appeal or when deciding thereon, order any such proceedings to be taken as in the circumstances appear to it proper for the due and convenient prosecution of the proceedings under the bankruptcy, although the time fixed for such proceedings has expired. Tho offices of Judges in bankruptcy shall be filled by such of tho Judges of the Supreme Court as may bo assigned to hold suoh office by the Governor, and every Judge so assigned shall hold the office of Judge in bankruptcy in addition to the office of Judge in the Supreme Court. There shall be attached to each Court having jurisdiction in bankruptcy an official assignee or official assignees of bankrupts’estates, appointed by the Governor, but shall be officers of the Court to which they are respectively attached. Any officer of the Court who is not authorised to act at any time in the place cf tho Jndge thereof, or any other porson,may be appointed an official assignee. Any notification in the " Garotte ” of an appointment of an official assignee shall be sufficient evidence of the appointment of the person therein named. Every person so appointed shall give security to the satisfaction of tho Governor, according to the value of interests likely to be affected. The Governor may vary tho security required by diminishing or increasing it so that no person shall bo required to give security to a larger amount than £SOOO at any one time. The official assignees shall be paid suoh sums as remuneration as the Governor shall appoint to bo paid out of the moneys appropriated by the Assembly. The official assignee shall have the tame powers as the receiver appointed by tho Supreme Court, and shall account to the Court. (2) He shall not, unless the Court otherwise order, incur any expense beyond such as is requisite for the protection of the bankrupt’s property. (3) Ho may apply to the Court for advice and direction. (4) He shall, as far as is practicable, consult the wishes of the creditors with respect to the administration of the bankrupt’s property, and for that purpose may, if he thinks it advisable, summon a meeting of the persons claiming to bo creditors. No person shall be capable cf acting as assignee for any bankrupt estate if he is a creditor thereof. If an assignee dies or becomes incapable of acting, or resigns or leaves the colony or becomes bankrupt, he shall vacate his cffice, and another shall be appointed in his place. When an assignee receives a salary or remuneration for his services, no payments shall be allowed in his accounts in respect of the ordinary duties which are required by statute or rules to be performed by official assignees. The assignee of a bankrupt estate shall make a report to the Court as to the oondm t of the bankrupt, stating whether there is reason to believe that ho has committed an act which constitutes a misdemeanour in case of bankruptcy, or which would justify the Court in refusing, suspending or qualifying an order for hit discharge. It shall also be the duty of an official assignee (a) to advertise the order of adjudication, the bankrupt’s examination, the date I of the creditors' meeting and such_ other I matter as it may necessary to advertise for I ha purpose of the bankruptcy ; (b) to summons and preside at the meeting of creditors

f(c) to issue forma of proxy for the use at such meetings j (d) to repeat to the oreditora an to any proposal which the bankrupt may have made with respect to the mode of liquidating his affairs ; (e) to reoeire proofs of debts, and accept or reject them subject to appeal to the Court; (f) to take such part as may be directed by the creditors in the public examination of the bankrupt. The Court may appoint persons to sndit accounts in bankruptcy. The following are to be deemed acts of bankruptcy—(l) That thi debtor has, in New Zealand or elsewhere (■») filed a debtor’s petition in bankruptcy, or a declaration that he is unable to pay his debts ; or (b) made, whether voluntary or otherwise, a conveyance or assignment of his property to a trustee or trustees for the benefit of any one or more of his creditors ; or (c) made a fraudulent conveyance, gift, delivery, or transfer of his property, or of any part thereof. (2) That the debtor has, with intent to defeat or delay his creditors, departed out cf New Z-aland, or being out of New Zealand, remained out of New Zealand, or departed from hie dwelling house, or departed from his usual place of business and residence, or otherwise absented hiuoelf or begun to keep his house. (3) That execution was issued against theses tor on any legal process; provided that if the execution be satisfied within three days after issue thereof the act of bankruptcy shall, ipto facto, be annulled. All proceedings in bankruptcy shall be commenced by a petition presented

to the Court praying that a debtor bo adjudged a bankrupt. A bankruptcy petition may be presented cither by the debtor or by a creditor or creditors. A bankruptcy petition shall be filed—(l.) Where the debtor is resident in the colony, in the Court for tha district comprising the place where he shall be residing or carrying on business at the time the petition is filed, or shall last have resided or carried on business, cr if such place be not within a district in the Court for the district nearest such then or last place of residence or business. (2) Or where the debtor is in custody, in a Coart having jurisdiction for the district comprising the place in which he is in custody, and if snch place shall not be within any district, then in tbo Court for the district nearest to such pi see. (3) Where a debtor is obsent from 'New Zealand or the petitioning creditor cannot ascertain the place of his residence, the petition shall be filed in the superior Court having jurisdiction for the district comprising the place in which the debtor last resided for three months, or for the longest time under three months. Settlement of property on wife, children, Ac., to be void if settler becomes bankrupt within three years from the date of settlement, unless he can prove he was solvent at the time, irrespective of the property so settled. Marriage settlement of any money or property wherein had not at the date of his marriage any estate or interest, and not being money or property of or in right of bis wife, shall upon bankruptcy before such property or money has been actually transferred or paid pursuant to snch contract or covenant be void against the assignee. Preferential payments to every bill cf sale shall be null and void as against the assignee of, a bankrupt estate, if it has been executed within three mouths prior to the order of adjudication being made, except as to money actually advanced or paid, or goods or chattels sold or supplied by the grantee of the bill of sale to the grantor contemporaneously with the execution thereof, but if the bankrupt at the time of the bankruptcy has in his possession, order, or disposition, by the consent and permission of the true owner thereof, any goods or chattels whereof bo was reputed owner, the Court may order the same to be sold, disposed of, or applied for the benefit of the creditors under the bankruptcy. The first dividend is to be declared within three months, or a meeting of creditor* is to be summoned. The final dividend to bo declared within eighteen months. No action for a dividend shall be brought against the assignee, but the Court may order it to be paid with interest out of bis own pocket if unduly withhold. The bankruptcy may be closed—(l) When a bankrupt has pasted his public examination he may apply to the Court for an order of di*;. charge, and the Caart may appoint a day for bearing the application. (2) The application may be made either after the elate of the bankruptcy or during its continuance, but in the latter case it shall not be mads except with the assent of a majority in number representing jtbree-feu-ths in value of the creditor*, signified in the prescribed manner, and on a certificate by the assignee that the bankrupt has duly surrendered his property, and that in the opinion of the assignee there is no further occasion for the bankrupt’s service in the bankruptcy. The following are the provisions as to th composition with creditors: - (X) The creditors may with the leave of the Court at the first or any subsequent meeting pass a preliminary order or resolution that a composition be accepted in satisfaction of a debt dne to them from the bankrupt. (2) The preliminary resolution shall not be passed unless there has been circulated among the creditors not loss than seven days before the meeting at which it is to be passed a notice stating the general terms of the proposal for composition and a report of the assignee as to the proposal, (3) For computing the requisite majority of creditors for the passing such confirming resolutions as aforesaid no creditor who is not resident in the colony or who has resident therein a known duly authorised agent, shall be reckoned either in number or value. No creditor whose debt shall not exceed £lO shall be reckoned in number, but such debts shall be computed in value, only subject as hereinafter mentioned. If the proposal for composition proI vidos for the payment in full of all creditors whoso respective debts do not exceed £lO, that class of creditor shall not be reckoned either in number or value. (5) When the confirming resolution has been passed the assignee shall, within four days thereafter, report to the Court as to the composition, and if the Court '3 of the opinion either (a) that the terms of the composition are not reasonable or not calculated to benefit the general body of creditors under the bankruptcy, or (b) that the bankrupt has committed any such misconduct as would justify the Court in refusing, qualifying or suspending his discharge, the Court may refuse to approve the composition, but otherwise shall approve it, and the approval may be testified by the Judge of the Court embodying the terms of the composition in an order of the Court or signing the deed of composition containing the terms. (6) A composition so approved by the Court shall be binding on all the creditors so fir as relates to any debte due to them and proveable under the bonkruploy. (7) The approval of tha Court shall be conclusive as to the validity of the composition. (8) The provisions of any composition under this section may be enforced by the Court on a motion made in a summary monner by any person interested and any disobedience of any order of tho Court made on tbe motion shall be deemed a contempt of Court. Costs are allowed at a fixed scale. Costa to be paid only on the order of a Judge. No costs allowed as between solicitor and client, the solicitor to have no lien on deeds, &o. No costs to be allowed for frivolous or unnecessary applications to the Court. The following is the scale of foes and costs permitted : —Fee for filing petition by a debtor or a creditor, £5 ; property realised by assignee, including debt* collected on tha first amount of £IOOO or any leas sum, £5 per cent,; on the next amount cf £IOOO or any less sum, £2 10s per cent. ; on all further sums, unless a Judge otherwise order, £1 per cent. Costs of supervision and remuneration to each on the gross receipts from the bankrupt’s property, on the first amount of £IOOO or any sum, £2 10s per cent. ; on tho next amopril of £IOOO or any less sum, £2 per cent.; on all further sums, unless, a judge otherwise orders, £1 per cent. Assignee's solicitor, including oil services till release, not exceeding £2O; to bankrupt’s solicitor, including all services till discharge, not exceeding £10; to solicitor for creditors or supervisors, including all services till discharge, £2o;_ to solicitor for preparing deed of composition, inclusive of all charges whatsoever in relation thereto/whera the estate amounts to £SOO or any Ices sum, £5 5s ; where the estate excecds £SOO, £lolos. Costs in respect cf trial*, where the claim involved doee not exceed £2OO on the amount recovered, £5 per cent.; where the claim involved does not exoeed.£soo, on tbo first amount of £2OO, or any less sum ro-o-vered, £5 per cent,; on all further sums recovered, £2 10s per cent. Where the clrim involved exceeds £SOO, on the first amount of £250, or any lee* sum recovered, £5 per cent. ; on the next amount of £250, or any less sum recovered, £2 10s per cent. ; on all further sums recovered, 10s per cent. Tho other provisions seem to be much the tame as in the Acts now in force, all ot ■ which the Bill repeal*.