Ending Bankruptcy

Based on the contribution of Andrew George and Colette Legeret for the NT Law Handbook, as amended by Graeme Blank of Blackburn Chambers and current to 18 January 2018

When does bankruptcy end?

Automatic discharge

Bankruptcy usually lasts for three years after the date the bankrupt files the statement of affairs. The discharge is automatic unless the trustee files an objection to the discharge and the objection has 'taken effect' (see Objections to discharge).

Early discharge

The early discharge provisions of the Bankruptcy Act were abolished for debtors who became bankrupt on or after 5 May 2003.

Objections to discharge

Either the Official Receiver or the trustee can file a written objection to discharge of the bankruptcy. If the objection 'takes effect', the bankruptcy will be extended to either five or eight years, depending on the grounds for objection. The objection will take effect as soon as it is filed with the Official Receiverand entered on the NPII. The objection ceases to have effect if the trustee or Official Receiver withdraws the objection.

The grounds on which an objection can be lodged are detailed in s 149D of the Bankruptcy Act.

Failure to disclose details of debts and creditors does not have to be deliberate for an objection to take effect. It is important to give accurate details of all debts when filing the statement of affairs. A bankrupt can apply to the Inspector-General or to the AAT to review a decision in relation to an objection to discharge.

Annulment

A bankruptcy can be annulled if:
  1. A bankrupt pays all debts in full, including interest and fees owing to the trustee; or
  2. The bankrupt makes an offer to pay their debts which is accepted by creditors and approved by the court; or
  3. The court is satisfied that a sequestration order ought not to have been made or a debtor's petition ought not to have been presented (see s 153B of the Bankruptcy Act).

The bankrupt's obligations after discharge

In general, a discharged bankrupt is not released from, and continues to be liable to pay, the following debts:
  1. Debts incurred after the commencement of the bankruptcy;
  2. Debts incurred by fraud;
  3. Maintenance arrears (subject to a court order to the contrary);
  4. Non-provable debts such as unliquidated damages, HELP debts, etc.;
  5. Income contributions due during the bankruptcy; and
  6. Some criminal penalties, such as payments due under good behaviour bonds.
The bankrupt is otherwise released from any obligation to pay provable debts on discharge, although secured creditors maintain the right to seize and sell any secured property.

A discharged bankrupt is still required to give assistance under s 152 of the Bankruptcy Act to the trustee in the realisation and distribution of property vested in the trustee.

This site is powered by FoswikiCopyright © by the contributing authors. All material on this collaboration platform is the property of the contributing authors.
Ideas, requests, problems regarding AustLII Communities? Send feedback