AGY-1064 | Bankruptcy Division [Supreme Court of New South Wales]

Full description

From 1823 to 1888 there was no explicit jurisdiction of the Supreme Court to deal with Insolvency matters where people could not meet their debts. Insolvency matters were generally heard by the Civil Jurisdiction of the Supreme Court from 1823 until the establishment of the Bankruptcy Division.

`An Act to Amend and Consolidate the Law Relating to Insolvency and Bankruptcy ', 1887 (51 Vic. Act No.19) established the Bankruptcy Jurisdiction of the Supreme Court of New South Wales.  A Puisne Judge was responsible for bankruptcy cases with appeal available to the full court. The judges could elect to conduct hearings in a full court, or in chambers and had the authority to delegate some of the bankruptcy responsibilities to the Registrar in Bankruptcy. The new Act defined more clearly the condition of bankruptcy and set out in more detail the procedures from inability to meet creditors to the distribution of the assets. The Act enumerated the rights and responsibilities of the bankrupt person, assignees and receivers. The Act more fully describes the process of bankruptcy including the -

a) inability to meet creditors
b) granting the sequestration order
c) the appointment of assignees and receivers
d) ascertaining the assets of the bankrupt person creditors' meetings
e) the examination of the bankrupt person
f) recording and notifying the bankruptcy
g) scheme of arrangement
h) administration of the estate
i) realisation of assets and distribution of the estate
j) issuing the Bankrupt certificate
k) discharge of bankruptcy.

The Act allowed the Judge in Bankruptcy to rule on consequential matters whether they be in law or equity bringing efficiencies both for the parties in dispute and for the Court.

By establishing the Bankruptcy Jurisdiction of the Supreme Court the proceedings became impartial. Under previous arrangements the process tended to favour either the debtor or the creditor.

With the 1887 Act the legislature achieved a piece of legislation which had wide public acceptance and which largely unaltered served the colony well into the twentieth century.

The aspect of processing bankruptcy hearings could be delegated to a Registrar in Bankruptcy and district registrars.

The jurisdiction was transferred to the Commonwealth of Australia in 1928 following the Bankruptcy Act, 1924 coming into effect on 1 August 1928.

REFERENCES
Bennett, J.M. A History of the Supreme Court of New South Wales. Sydney, Law Book Company, 1974 Chapter 6 Bankruptcy jurisdiction.
Manning, J.K and Bohringer, L.G. Australian Bankruptcy Law and Practice. 3rd edition. Sydney, Law Book Company, 1953