Commonwealth Numbered Regulations

1994 No. 214 BANKRUPTCY RULES (AMENDMENT) - RULE 5

5.1 Omit the Division, substitute:
              "Division 3-Apportionment of property
Interpretation

"41. In this Division, unless the contrary intention appears:
'actuary' has the same meaning as in the Superannuation Industry 
(Supervision) Act 1993 ;
'accumulation fund' has the same meaning as in the Superannuation Industry
(Supervision) Regulations;
'approved deposit fund' has the same meaning as in the Superannuation 
Industry (Supervision) Act 1993 ;
'defined benefit fund' has the same meaning as in the Superannuation Industry
(Supervision) Regulations;
'member' means:

   (a)  in relation to a regulated superannuation fund-a person who:

        (i)    is a member of the fund; or

        (ii)   receives a pension from the fund; or

        (iii)  has deferred his or her entitlement to receive a benefit from
               the fund; and

   (b)  in relation to an approved deposit fund-a depositor in the fund;
'pension RBL', in relation to a bankrupt, means the bankrupt's pension RBL
worked out under section 140ZD of the Income Tax Assessment Act 1936;
'preserved component' means the component of a bankrupt's interest in a fund
that consists of preserved benefits (ascertained in accordance with
Subdivision 6.1.2 of the Superannuation Industry (Supervision) Regulations);
'regulated superannuation fund' has the same meaning as in the
Superannuation Industry (Supervision) Act 1993;
'restricted non-preserved component' means the component of a bankrupt's
interest in a fund that consists of restricted non-preserved benefits
(ascertained in accordance with Subdivision 6.1.3 of the Superannuation
Industry (Supervision) Regulations);
'unrestricted non-preserved component' means the component of a bankrupt's
interest in a fund that consists of unrestricted non-preserved benefits
(ascertained in accordance with Subdivision 6.1.4 of the Superannuation
Industry (Supervision) Regulations);
'withdrawal benefit' has the same meaning as in the Superannuation Industry
(Supervision) Regulations.

Method of apportionment-subsection 116 (6) of the Act Purposes and application

"41A. (1) This rule is made for the purposes of subsection 116 (6) of the Act.
Accordingly, it applies in respect of property of a bankrupt that is covered
by paragraph 116 (2) (d) of the Act (in this rule called 'the bankrupt's
property'), where the total value of the bankrupt's property exceeds the
amount of the bankrupt's pension RBL.

One item of property-life assurance or endowment assurance

"(2) If the bankrupt's property:

   (a)  consists of only 1 item; and

   (b)  is in the form of:

        (i)    a policy of life assurance or endowment assurance; or

        (ii)   proceeds of a policy of that kind, being proceeds that are
               received by the bankrupt on or after the date of the
               bankruptcy; the method of determining how the property is to be
               apportioned is to extend subsection 116 (1) of the Act to the
               proportion of that property that exceeds the amount of the
               bankrupt's pension RBL.

One item of property-payment from regulated superannuation fund or approved
deposit fund

"(3) If the bankrupt's property:

   (a)  consists of only 1 item; and

   (b)  is in the form of a payment from a regulated superannuation fund or an
        approved deposit fund, being a payment that:

        (i)    is received by the bankrupt on or after the date of the
               bankruptcy; and

        (ii)   is not a pension, within the meaning of the Superannuation 
               Industry (Supervision) Act 1993 ; the method of determining how
               the property is to be apportioned is to extend subsection 116
               (1) of the Act to the proportion of that property that exceeds
               the amount of the bankrupt's pension RBL.

One item of property-interest in regulated superannuation fund or approved
deposit fund

"(4) If the bankrupt's property:

   (a)  consists of only 1 item; and

   (b)  is in the form of an interest in a regulated superannuation fund or an
        approved deposit fund; the method of determining how the property is
        to be apportioned is to extend subsection 116 (1) of the Act to the
        components of the property in the following order:

   (c)  the unrestricted non-preserved component of the property;

   (d)  the restricted non-preserved component of the property;

   (e)  the preserved component of the property; until the value of the
        bankrupt's residuary interest in the property equals the value of the
        bankrupt's pension RBL. EXAMPLE: Assume that the bankrupt has one item
        of property, namely an interest of $1,200,000 in a regulated
        superannuation fund. This property has the following components:

   (a)  an unrestricted non-preserved component of $100,000;

   (b)  a restricted non-preserved component of $200,000;

   (c)  a preserved component of $900,000. The amount ($400,000) by which the
        property exceeds the pension RBL ($800,000) is available towards
        satisfying the creditors in the bankruptcy. The amount of $400,000 is
        met by applying the whole of the non-preserved components ($100,000 +
        $200,000 = $300,000) and $100,000 from the preserved component. NOTE:
        The amount of the pension RBL (in the above example, $800,000) is
        always protected and remains in the fund.

More than 1 item of property

"(5) If the bankrupt's property consists of more than 1 item, the method of
determining how the property is to be apportioned is to extend subsection 116
(1) of the Act to the items in the following order:

   (a)  proceeds of a policy of life assurance or endowment assurance received
        by the bankrupt on or after the date of the bankruptcy;

   (b)  policies of life assurance or endowment assurance;

   (c)  a payment from a regulated superannuation fund or an approved deposit
        fund, being a payment that:

        (i)    is received by the bankrupt on or after the date of the
               bankruptcy; and

        (ii)   is not a pension, within the meaning of the Superannuation 
               Industry (Supervision) Act 1993 ;

   (d)  the unrestricted non-preserved component of any interest in an
        approved deposit fund;

   (e)  the unrestricted non-preserved component of any interest in an
        accumulation fund;

   (f)  the restricted non-preserved component of any interest in an
        accumulation fund;

   (g)  the preserved component of any interest in an approved deposit fund;

   (h)  the preserved component of any interest in an accumulation fund;

   (i)  the unrestricted non-preserved component of any interest in a defined
        benefit fund;

   (j)  the restricted non-preserved component of any interest in a defined
        benefit fund;

   (k)  the preserved component of any interest in a defined benefit fund;
        until the value of the bankrupt's residuary interest in the property
        equals the value of the bankrupt's pension RBL.

Method of working out value of property-subsection 116 (7) of the Act

"41B. (1) This rule is made under subsection 116 (7), and for the purposes of
subsection 116 (5), of the Act.



"(2) In the case of property that is an interest in a policy of life assurance
or endowment assurance, the value of the bankrupt's interest in the property
is taken to be the amount available in cash on voluntary termination of the
policy at the date of bankruptcy.



"(3) In the case of property that is an interest in an accumulation fund or an
approved deposit fund, the value of the bankrupt's interest in the property is
taken to be the withdrawal benefit of the bankrupt in the fund at the date of
bankruptcy.



"(4) Subject to subrule (5), in the case of property that is an interest in a
defined benefit fund, the value of the bankrupt's interest in the property is
taken to be the withdrawal benefit of the bankrupt in the fund at the date of
bankruptcy.



"(5) If the withdrawal benefit is not an immediately payable lump sum, the
amount of the withdrawal benefit is to be determined by an actuary for the
purposes of subrule (4).

Evidentiary certificate by trustee-subsection 116 (8) of the Act

"41C. (1) This rule is made for the purposes of subsection 116 (8) of the Act.



"(2) Where the bankrupt has an interest in a regulated superannuation fund or
an approved deposit fund of the kind referred to in that subsection, the
trustee of the bankrupt must give a request in writing to the trustee of the
fund to provide a written certificate setting out the following particulars:

   (a)  the withdrawal benefit of the bankrupt in the fund at the date of
        bankruptcy; and

   (b)  the amount of each payment (if any) that the fund has paid to the
        bankrupt, and the date of each payment.



"(3) The trustee of a fund who receives a request under subrule (2) must give
a written certificate setting out the requested particulars, so far as it is
reasonably practicable to do so, and signed and dated by the trustee, to the
relevant trustee in bankruptcy within 28 days or, if the relevant trustee
allows a further period of time, that further period.



"(4) A document that purports, or appears to the court, to be a written
certificate given under subrule (3) is prima facie evidence of its contents
and may be tendered in evidence without being proved.".