Real Property
Bankruptcy Act 1988 (as amended)
(New)
Functions of Official Assignee
61.—(1) This section applies to every bankruptcy matter and vesting arrangement.
(2) The functions of the Official Assignee are to get in and realise the property, to ascertain the debts and liabilities and to distribute the assets in accordance with the provisions of this Act.
(3) In the performance of his functions the Official Assignee shall, in particular, have power—
(a) to sell the property by public auction or private contract, with power to transfer the whole thereof to any person or to sell the same in lots and for the purpose of selling land to carry out such sale by F47[…] lease, sub-lease or otherwise and to sell F47[…] any reversion expectant upon the determination of any such lease,
(b) to make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging themselves to have any claim present or future, certain or contingent, ascertained or sounding only in damages whereby the bankrupt or arranging debtor may be rendered liable,
(c) to compromise all debts and liabilities capable of resulting in debts and all claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the bankrupt or arranging debtor and any debtor and all questions in any way relating to or affecting the assets or the proceedings on such terms as may be agreed and take any security for the discharge of any debt, liability or claim, and give a complete discharge in respect thereof,
(d) to institute, continue or defend any proceedings relating to the property,
(e) to refer any dispute concerning the property to arbitration under the terms of section 11 of the Arbitration Act, 1954,
(f) to mortgage or pledge any property to raise any money requisite,
(g) to take out in his official name without being required to give security, letters of administration to any estate on the administration of which the bankrupt or arranging debtor would benefit,
(h) to agree a sum for costs where the Court so directs or where he considers that the amount which would be allowed on taxation would not exceed F48[€12,000],
(i) to agree the charges of accountants, auctioneers, brokers and other persons,
(j) to ascertain and certify to the Court the amount due in respect of a mortgage debt and the due priority thereof with power to the Court to vary such certificate,
(k) to draw out of the account referred to in section 84 (1) any sum not exceeding F49[€130] by way of indemnity in respect of costs incurred by him.
F50[(3A) In the case of an adjudication in bankruptcy under Article 3(1) of the Insolvency Regulation, the Official Assignee shall have the powers conferred on a liquidator in relation to taking action in member states under the Regulation.]
F51[(4) Notwithstanding any provision to the contrary contained in subsection (3), no disposition of property of a bankrupt, arranging debtor or person dying insolvent, which comprises—
(a) a family home (within the meaning of the Family Home Protection Act 1976 ) of the bankrupt or the bankrupt’s spouse, or
(b) a shared home (within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010) of the bankrupt or the bankrupt’s civil partner (within the meaning of that Act),
shall be made without the prior sanction of the Court and any disposition made without such sanction shall be void.
(5) On an application by the Official Assignee under subsection (4) for an order for the disposition of a family home or shared home, the Court, notwithstanding anything contained in this or any other enactment, shall have power to order postponement of the disposition of the family home or shared home, as the case may be, having regard to the interests of the creditors, spouse or civil partner (within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010), and any dependants, of the bankrupt, arranging debtor or person dying insolvent, as the case may be, as well as to all the circumstances of the case.]
(6) The Official Assignee may in case of doubt or difficulty seek the directions of the Court in connection with the affairs of any bankrupt or arranging debtor.
(7) The exercise by the Official Assignee of the powers conferred by this section shall be subject to the control of the Court, and any creditor or other person who in the opinion of the Court has an interest may apply to the Court in relation to the exercise or proposed exercise of those powers.
(8) The powers and functions conferred on the Official Assignee by this section may be exercised and performed—
(a) in the case of an adjudication founded on a petition of a debtor, on adjudication,
(b) in the case of an adjudication founded on a petition by a creditor, on the expiration of the time for showing cause,
(c) in the case of a vesting arrangement, on approval of the proposal by the Court.
Annotations:
Amendments:
F47
Deleted (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(1) and sch. 1, S.I. No. 356 of 2009.
F48
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 30(e), commenced on enactment.
F49
Substituted (1.01.2002) by Bankruptcy Act 1988 (Alteration of Monetary Limits) Order 2001 (S.I. No. 595 of 2001), art. 2 and sch., in effect as per art. 2.
F50
Inserted (2.07.2002) by European Communities (Personal Insolvency) Regulations 2002 (S.I. No. 334 of 2002), reg. 3(b).
F51
Substituted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 9, S.I. No. 34 of 2016.
Editorial Notes:
E16
Previous affecting provision: subs. (5) amended (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(1) and sch. 1, S.I. No. 356 of 2009 and (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 168 and sch. part 3 item 14(b), S.I. No. 648 of 2010; substituted as per F-note above.
E17
Previous affecting provision: subs. (3)(h) amended (10.04.2002) by Courts and Court Officers Act 2002 (15/2002), s. 34, commenced on enactment; further amended as per F-note above.
E18
Previous affecting provision: subs. (3)(h) amended (1.01.2002) by Bankruptcy Act 1988 (Alteration of Monetary Limits) Order 2001 (S.I. No. 595 of 2001), art. 2 and sch., in effect as per art. 2; further amended as per F-note above.
Bankruptcy Inspector and assistants.
(1857, s. 62)
62.—(1) The Bankruptcy Inspector and his assistants shall follow the instructions of the Official Assignee, subject to the directions and control of the Court.
(2) Subject to the provisions of this Act, it shall be the duty of the Bankruptcy Inspector or his assistants—
(a) to seize the property of the bankrupt pursuant to a warrant issued by the Court under section 27,
(b) to take an inventory of and report on the bankrupt’s property,
(c) to take possession of the property of an arranging debtor pursuant to section 100, and to take an inventory of and report on the property,
(d) to do such other things as may be directed by the Court or the Official Assignee.
Protection of Official Assignee.
(1857, s. 65)
63.—The Official Assignee shall not be liable—
(a) by reason of any of the matters on which an adjudication was grounded being insufficient to support the adjudication,
(b) in respect of his receipt of any property, provided he has not dealt with the property otherwise than as directed by the Court or as required by this Act or by F52[regulations made by the Minister under this Act].
Annotations:
Amendments:
F52
Substituted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 30, S.I. No. 463 of 2013.
Power of Official Assignee to bar entail.
(1857, s. 340; 1872, s. 50)
64.—F53[…]
Annotations:
Amendments:
F53
Repealed (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(3) and sch. 2 part 5, S.I. No. 356 of 2009.
Power of Official Assignee to appropriate part of bankrupt’s income.
(New: cf. 1857, s. 319; 1872, s. 51)
65.—(1) Notwithstanding any provision to the contrary in any other enactment, whenever a bankrupt, whether self-employed or not, is in receipt of or is entitled to receive any salary, income, emolument or pension, the Court may, from time to time, on the application of the Official Assignee, make such order directed to the bankrupt and any person from whom the bankrupt is entitled to receive any such salary, income, emolument or pension for the payment to the Official Assignee of all or part of such salary, income, emolument or pension, subject to such conditions as to payment as the Court may specify in the order having regard to the family responsibilities and personal situation of the bankrupt.
(2) The Court may at any time, on the application of any interested person, vary an order under subsection (1), having regard to any changes in the family responsibilities or personal situation of the bankrupt.
F54[Cesser of section 65.
65A.— An application for an order under section 65 shall not be made after the coming into operation of this section, but this section shall not operate to prevent an application under section 65(2) where an order under section 65(1) is in force on the coming into operation of this section. ]
Annotations:
Amendments:
F54
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 155, S.I. No. 463 of 2013.
Delivery of property to Official Assignee.
(cf. 1857, s. 324)
66.—Every person shall, on request, deliver up to the Official Assignee all money or securities for money in such person’s possession or control which he is not by law entitled to retain as against the bankrupt or the Official Assignee.
Right of Official Assignee to transfer stocks or shares.
(cf. 1857, s. 320)
67.—Where any part of the property of a bankrupt, or of an arranging debtor under a vesting arrangement, consists of stocks or shares, the Official Assignee may exercise the right to transfer them to the same extent as the bankrupt or arranging debtor could have exercised it but for the adjudication or vesting arrangement.
Right of Official Assignee to inspect goods pawned or pledged.
(New)
68.—Where any goods of a bankrupt are held by any person by way of pledge, pawn or other security, the Official Assignee may give notice in writing to the holder of his intention to inspect the goods and, where such notice has been given, the holder shall not be entitled to realise his security until he has given the Official Assignee a reasonable opportunity of inspecting the goods and of exercising his right of redemption if he thinks fit to do so.
Receipt of property of bankrupt.
(cf. 1857, ss. 60, 61)
69.—(1) The Official Assignee shall be assignee of each bankrupt’s estate and act with the creditors’ assignee, if any.
(2) Except where otherwise directed by the Court, the property of every bankrupt, and the income and proceeds thereof, shall be possessed and received by the Official Assignee.
F55[(3) All money and securities received by the Official Assignee, being part of a bankrupt’s estate, shall be forthwith lodged by him in an account in the Central Bank of Ireland or a bank authorised to carry on business in the State and shall be kept there to the credit of the Official Assignee subject to the provisions of this Act, any regulations made under subsection (6) and the directions of the Court.]
(4) Subject to section 84, all money and securities which, immediately before the commencement of this Act, stood to the credit of bank accounts in bankruptcy or arrangement matters shall be dealt with pursuant to rules of court.
(5) The Official Assignee, with the leave of the Court, may from time to time invest the whole or any part of any money referred to in this section, and any interest thereon shall be paid into the appropriate bank accounts.
F56[(6) The Minister may, following consultation with the Insolvency Service, by regulations make provision for the manner in which the Official Assignee shall maintain accounts referred to in subsection (3) and for matters relating to the keeping of such accounts.]
Annotations:
Amendments:
F55
Substituted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 31(a), S.I. No. 463 of 2013.
F56
Inserted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 31(b), S.I. No. 463 of 2013.
Editorial Notes:
E19
Power pursuant to subs. (6) exercised (3.12.2013) by Bankruptcy Act 1988 (Official Assignee Accounts and Related Matters) Regulations 2013 (S.I. No. 464 of 2013).
Claim to property in possession of bankrupt.
(New)
70.—(1) Where a person claims any property which is in the possession of the bankrupt at the date of adjudication he shall file with the Official Assignee a claim verified by affidavit.
(2) The Official Assignee may give notice in writing to any person to prove his claim to property which is in the possession of the bankrupt at the date of adjudication and, unless within one month after the service of the notice that person files with the Official Assignee a claim verified by affidavit, the Official Assignee may, with the sanction of the Court, sell or dispose of the property free of any right or interest therein of that person.
Allowances to bankrupt.
(cf. 1857, s. 301)
71.—The Court may make to the bankrupt out of his estate such allowances as the Court thinks proper in the special circumstances of the case.
Redirection of letters, etc., addressed to bankrupt.
(1857, s. 312)
72.—Where a debtor is adjudicated bankrupt the Court, on the application of the Official Assignee, may from time to time order that for such time, not exceeding three months, as the Court thinks fit letters, telegrams and postal packets addressed to the bankrupt at any place mentioned in the order shall, on such terms and subject to such conditions as the Court thinks fit, be redirected, sent or delivered to the Official Assignee as the Court directs.
Appointment of receivers and managers.
(1872, s. 68)
73.—The Court may, at any time after adjudication or after the granting of an order for protection, appoint a receiver or manager of the whole or part of the property of the bankrupt or arranging debtor and may direct that the receiver or manager take immediate possession of such property or any part thereof.
Joint and separate dividends.
(cf. 1857, s. 266)
74.—If one or more of the partners of a firm is a bankrupt, any creditor of the firm shall be entitled to prove his debt or be admitted as a creditor for the purpose of voting in the choice and appointment of a creditors’ assignee but such creditor shall not receive any dividend out of the separate estate of the bankrupt until all the separate creditors shall have received the full amount of their respective debts.
Distribution of estate.
(cf. 1857, ss. 286, 288, 289, 290, 292, 293)
82.—(1) As soon as convenient after the receipt by him of sufficient funds to meet expenses, fees, costs and preferential payments and to pay a dividend to creditors in any bankrupt’s estate the Official Assignee shall place on the Court file a list of creditors admitted by him or by the Court, a copy of the relevant account of the bankrupt in his books, particulars of expenses, fees, costs, preferential payments and dividend payable to creditors and his report on the realisation of the estate.
(2) The Official Assignee shall present the documents and the report filed in accordance with subsection (1) to the Court at a sitting to be held not less than twenty-one days after notice of the filing and of the sitting has been given in the prescribed manner.
(3) At the sitting the Court may make such order as it thinks fit for distribution of the estate or any part thereof by payment of the expenses, fees, costs and preferential payments as well as the relevant dividend.
(4) The file referred to in subsection (1) shall be open to public inspection on payment of a prescribed fee but no fee shall be charged to creditors inspecting the file.
(5) If for any reason the estate of the bankrupt is not fully distributed at such sitting, second and subsequent distributions shall be made as soon as convenient after the realisation of the residual estate. The procedure shall be the same as for the first distribution.
(6) In any case where there are no funds, or in the opinion of the Official Assignee insufficient funds, available for distribution to the creditors the Court may order the payment of expenses, fees and costs in that order so far as the funds extend. Where a balance remains, it shall be transferred to the account referred to in section 84 (1).
Accounts and audit.
(New)
83.—F59[…]
Annotations:
Amendments:
F59
Repealed (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 32, S.I. No. 463 of 2013.
F60[
Official Assignee — Unclaimed Dividend Account
84.— (1) The Official Assignee shall cause an account to be opened—
(a) in the Central Bank of Ireland, or
(b) a bank authorised to carry on business in the State,
and any such account shall be called the “Official Assignee — Unclaimed Dividend Account” and a reference in this section to a “relevant account” is to be construed as a reference to such an account.
(2) The Official Assignee shall pay into a relevant account all unclaimed dividends and all money unclaimed, being part of any bankrupt’s estate.
(3) (a) The Official Assignee shall be entitled to pay out of a relevant account all dividends lawfully claimed as well as the sums provided for by section 61(3)(k).
(b) In order to provide temporarily for payments for which no funds are immediately available in the particular estate against which they are chargeable, there may be paid out of a relevant account to the credit of the Official Assignee in a separate account in the said bank such sums, subject to such conditions, as may be prescribed by regulations made by the Minister.
(4) The Official Assignee, with the leave of the Court, may from time to time invest the whole or any part of the money standing to the credit of a relevant account, and the interest on the investments shall be paid into a relevant account.
(5) The Court may order that the Official Assignee shall be paid out of a relevant account such sum by way of indemnity in respect of any damages, costs or expenses payable or incurred or to be payable or incurred by him for or by reason of any act or matter done by him while acting as Official Assignee as the Court thinks just, including the costs of any proceedings taken by the Official Assignee with the leave of the Court where there are insufficient funds in the matter.
(6) A relevant account shall not be available for any purpose other than the purposes of this section.
(7) The Minister may, following consultation with the Insolvency Service, by regulations prescribe—
(a) the manner in which the Official Assignee shall maintain a relevant account,
(b) the purposes for which funds may be withdrawn from a relevant account pursuant to subsection (3)(b),
(c) the monetary limits relating to the withdrawal of funds from a relevant account pursuant to subsection (3)(b), and
(d) the conditions subject to which funds may be withdrawn from a relevant account pursuant to subsection (3)(b).]
Annotations:
Amendments:
F60
Substituted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 33, S.I. No. 463 of 2013.
Editorial Notes:
E22
Power pursuant to subs. (7) exercised (3.12.2013) by Bankruptcy Act 1988 (Official Assignee Accounts and Related Matters) Regulations 2013 (S.I. No. 464 of 2013).
F61[
Automatic discharge from bankruptcy.
85.—F62[(1) Subject to subsection (2) and section 85A, every bankruptcy shall, on the 1st anniversary of the date of the making of the adjudication order in respect of that bankruptcy, unless prior to that date the bankruptcy has been discharged or annulled, stand discharged.]
F62[(2) (a) Where an adjudication order in respect of a bankruptcy would, but for section 10 of the Bankruptcy (Amendment) Act 2015, expire on any day during the period of 6 months from the commencement of that section, the bankruptcy concerned shall, subject to section 85A, stand discharged on that day unless it has otherwise been discharged or annulled.
(b) Where an adjudication order in respect of a bankruptcy would, but for section 10 of the Bankruptcy (Amendment) Act 2015, expire at any time after the expiration of 6 months from the commencement of that section, the bankruptcy concerned shall, subject to section 85A, stand discharged on the later of—
(i) 6 months after that commencement, or
(ii) one year from the date that the adjudication order was made,
unless it has otherwise been discharged or annulled.]
(3) F62[Subject to subsection (3A), where a bankruptcy is discharged] in pursuance of this section the unrealised property of the bankrupt shall remain vested in the Official Assignee for the benefit of the creditors.
F63[(3A) Subject to subsections (3B) to (3F), where on the 3rd anniversary of the date of the making of the adjudication order in respect of a bankruptcy—
(a) the unrealised property of the bankrupt referred to in subsection (3) includes an estate or interest in what was, at the date of the making of the adjudication order, the family home, shared home or principal private residence of the bankrupt, and
(b) in the case of the family home or shared home, the Official Assignee has not applied to the Court for an order for sale of that home,
that estate or interest shall, on that 3rd anniversary, stand re-vested in the bankrupt without the need for any conveyance, assignment or transfer.
(3B) Subject to subsections (3E) and (3F), where prior to the 3rd anniversary of the date of the making of the adjudication order in respect of a bankruptcy the Official Assignee—
(a) has applied to the Court for an order for sale in respect of what was at the date of that adjudication the family home or shared home of the bankrupt, and
(b) that application is dismissed by the Court,
the Court shall, unless it does not consider it just to do so in all the circumstances, make an order that the estate or interest of the bankrupt in that family home or shared home shall stand re-vested in the bankrupt from such date as is specified in the order without the need for any conveyance, assignment or transfer.
(3C) Subject to subsections (3E) and (3F), subsection (3A) shall not apply where at any time after the date of the making of the adjudication order in respect of the bankruptcy but prior to the 3rd anniversary of that date—
(a) the Official Assignee and the bankrupt have entered into an agreement in writing, for consideration or otherwise, that any estate or interest of the bankrupt in what was, at the date of adjudication, the family home, shared home or principal private residence of that bankrupt will not re-vest in that bankrupt, or
(b) on application by the bankrupt or the Official Assignee, the Court, where it considers it just to do so, makes an order that any estate or interest of the bankrupt in what was, at the date of adjudication, the family home, shared home or the principal private residence of that bankrupt will not re-vest in that bankrupt.
(3D) Subsection (3A) shall not apply where, on application by the Official Assignee at any time after the date of the making of the adjudication order in respect of that bankruptcy but prior to the 3rd anniversary of that date, the Court substitutes for that 3rd anniversary such longer period as the Court considers just in all the circumstances.
(3E) Where the Court makes an order under subsection (3D), subsections (3A), (3B) and (3C) shall apply subject to the modification that each reference to the 3rd anniversary in those subsections shall be taken to be a reference to the longer period substituted by the Court under subsection (3D) for such 3rd anniversary.
(3F) Where an order of adjudication in bankruptcy was made more than 2 years and six months prior to the day of coming into operation of section 10 of the Bankruptcy (Amendment) Act 2015, subsections (3A), (3B) and (3C) shall apply subject to the modification that each reference to the 3rd anniversary in those subsections shall be taken to be a reference to the day falling 6 months after the day of coming into operation of that section.
(3G) Where an estate or interest in a family home, shared home or principal private residence has re-vested in a bankrupt in accordance with this section, the Official Assignee shall, on the application of the bankrupt, issue a certificate in such form as may be prescribed confirming that the estate or interest has re-vested in that bankrupt.]
(4) A bankrupt who is discharged from bankruptcy in pursuance of this section shall have a duty to co-operate with the Official Assignee in relation to the realisation and distribution of such of his property as is vested in the Official Assignee.
(5) A person whose bankruptcy has been discharged by virtue of this section may apply to the Official Assignee for the issue of a certificate of discharge from bankruptcy.
F62[(6) (a) In this section and in sections 85A to 85D, ‘bankrupt’ includes personal representatives and assigns.
(b) In this section, ‘family home’ and ‘shared home’ have the same meaning as they have in section 61.]]
Annotations:
Amendments:
F61
Substituted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 157, S.I. No. 462 of 2013.
F62
Substituted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 10(a), (b) and (d), S.I. No. 34 of 2016.
F63
Inserted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 10(c), S.I. No. 34 of 2016.
Editorial Notes:
E23
Previous affecting provision: section substituted (10.10.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 30(g), S.I. No. 508 of 2011.; substituted as per F-note above.
E24
Previous affecting provision: subs. (3)(a)(ii) substituted (20.07.2008) by Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), s. 65, S.I. No. 274 of 2008; substituted as per E-note above.
E25
Previous affecting provision: subss. (3) and (4) amended (1.01.2002) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 7(1), commenced as per s. 7(1); substituted as per E-note above.
F64[
Objection to automatic discharge from bankruptcy.
85A.—(1) The Official Assignee, the trustee in bankruptcy or a creditor of the bankrupt may, prior to the discharge of a bankrupt pursuant to section 85, apply to the Court to object to the discharge of a bankrupt from bankruptcy in accordance with section 85 where the Official Assignee, the trustee in bankruptcy or the creditor concerned believes that the bankrupt has—
(a) failed to co-operate with the Official Assignee in the realisation of the assets of the bankrupt, or
(b) hidden from or failed to disclose to the Official Assignee income or assets which could be realised for the benefit of the creditors of the bankrupt.
(2) An application under subsection (1) shall be made on notice to the bankrupt and where made by the trustee in bankruptcy or a creditor, notice shall also be given to the Official Assignee.
(3) Where it appears to the Court that the making of an order pursuant to subsection (4) may be justified, the Court may make an order that the matters complained of by the applicant under subsection (1) be further investigated and pending the making of a determination of the application the bankruptcy shall not stand discharged by virtue of section 85.
F65[(4) Where the Court is satisfied that the bankrupt has—
(a) failed to co-operate with the Official Assignee in the realisation of the assets of the bankrupt, or
(b) hidden from or failed to disclose to the Official Assignee income or assets which could be realised for the benefit of the creditors of the bankrupt,
the Court may, where it considers just to do so, order that, in place of the discharge provided for in section 85, the bankruptcy shall stand discharged on such later date—
(i) being not later than the 8th anniversary of the date of the making of the adjudication order, as the Court considers just, or
(ii) being not later than the 15th anniversary of the date of the making of the adjudication order, which the Court considers just in view of the seriousness of the failure to co-operate referred to in paragraph (a) or the extent to which income or assets referred to in paragraph (b) were hidden or not disclosed, or both, as the case may be.]
(5) Where the Court has made an order under subsection (4), no further application may be made under subsection (1).
(6) The making of an order under this section shall not prevent an application being made for discharge or annulment under section 85B.]
Annotations:
Amendments:
F64
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 157, S.I. No. 462 of 2013.
F65
Substituted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 11, S.I. No. 34 of 2016.
F66[
Entitlement to discharge from bankruptcy.
85B.— (1) A bankrupt shall be entitled to an order discharging him from bankruptcy where provision has been made for the payment of the expenses, fees and costs of the bankruptcy, and for preferential payments, and—
(a) he has paid one euro in the euro, with such interest as the Court may allow, or
(b) he has obtained the consent in writing of all of his creditors, whose debts have been proved and admitted in the bankruptcy, or
(c) section 41 (discharge of adjudication order) applies.
(2) The giving of consent by a creditor under subsection (1) constitutes a waiver by that creditor of the right to recover the amount concerned proved and admitted in the bankruptcy.
F67[(2A) An order of discharge shall provide that any property of the bankrupt then vested in the Official Assignee shall be revested in or returned to the bankrupt, and that order shall for all purposes be deemed to be a conveyance, assignment or transfer of that property to the bankrupt and, where appropriate, may be registered accordingly.]
(3) A person whose bankruptcy has been discharged by virtue of this section may apply to the Official Assignee for the issue of a certificate of discharge from bankruptcy. ]
Annotations:
Amendments:
F66
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 157, S.I. No. 462 of 2013.
F67
Inserted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 34, S.I. No. 463 of 2013.
F68[
Annulment of adjudication in bankruptcy.
85C.— (1) A person shall be entitled to an annulment of his adjudication—
(a) where he has shown cause pursuant to section 16, or
(b) in any other case where, in the opinion of the Court, he ought not to have been adjudicated bankrupt.
(2) An order of annulment shall provide that any property of the bankrupt then vested in the Official Assignee shall be revested in or returned to the bankrupt, and that order shall for all purposes be deemed to be a conveyance, assignment or transfer of that property to the bankrupt and, where appropriate, may be registered accordingly.
(3) A person whose bankruptcy has been annulled may apply to the Official Assignee for the issue of a certificate that the bankruptcy has been annulled. ]
Annotations:
Amendments:
F68
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 157, S.I. No. 462 of 2013.
F69[
Bankruptcy payment orders.
85D.— (1) The Court may, on application being made to it by the Official Assignee or the trustee in bankruptcy, make an order requiring a bankrupt to make payments to the Official Assignee or the trustee in bankruptcy from his income or other assets for the benefit of his creditors (a ‘bankruptcy payment order’).
(2) An application for a bankruptcy payment order may not be made after the bankrupt has been discharged from bankruptcy, but where an application for such an order is made before the discharge of the bankrupt, the Court may make a bankruptcy payment order after the date of discharge as if the bankrupt had not been so discharged.
F70[(3) Subject to subsections (3A) and (3B), an order made under subsection (1) shall have effect for no longer than 3 years from the date of the order coming into operation, and where, during the order’s validity, the Court has varied the order under subsection (5), such variation shall not cause the order to have effect for a period of more than 3 years, and in any event, any order made under subsection (1) or varied under subsection (5) shall cease to have effect on the 4th anniversary of the date on which the bankrupt was adjudicated bankrupt.
(3A) (a) Where a bankruptcy payment order would, but for section 12 of the Bankruptcy (Amendment) Act 2015, expire on any day during the period of 6 months from the commencement of that section, the bankruptcy payment order concerned shall, subject to subsection (3B), stand discharged on that day unless it has otherwise been discharged or annulled.
(b) Where a bankruptcy payment order would, but for section 12 of the Bankruptcy (Amendment) Act 2015, expire at any time after the expiration of 6 months from the commencement of that section, the bankruptcy payment order concerned shall, subject to subsection (3B), stand discharged on the later of—
(i) 6 months after that commencement, or
(ii) 3 years from the date that bankruptcy payment order was made,
unless it has otherwise been discharged or annulled.
(3B) Where the Court has made an order under section 85A(4), the bankruptcy payment order made under subsection (1) shall have effect for no longer than 5 years from the date of that bankruptcy payment order coming into operation, and where, during that bankruptcy payment order’s validity, the court has varied that order under subsection (5) such variation shall not cause that order to have effect for a period of more than 5 years, and in any event, any bankruptcy payment order made under subsection (1) or varied under subsection (5) shall cease to have effect on the 8th anniversary of the date on which the bankrupt was adjudicated bankrupt.]
(4) In making an order under subsection (1) the Court shall have regard to the reasonable living expenses of the bankrupt and his or her dependants and the Court may also have regard to any guidelines on reasonable living expenses issued by the Insolvency Service under the Personal Insolvency Act 2012 or by the Official Assignee.
(5) The Court, on the application of the bankrupt or the Official Assignee or the trustee in bankruptcy, may vary a bankruptcy payment order granted under subsection (1) where there has been a material change in the circumstances of the bankrupt.
(6) The court in granting an application under subsection (1) may order any person from whom the bankrupt is entitled to receive any salary, income, emolument, pension or other payment to make payments to the Official Assignee or trustee.
(7) For the purposes of this section, where a bankrupt is, or may become entitled to, payments under a relevant pension arrangement, an asset relating to the arrangement (other than payments already received by the bankrupt, or that the bankrupt was entitled to receive, under the arrangement) shall not be regarded as an asset. ]
Annotations:
Amendments:
F69
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 157, S.I. No. 462 of 2013.
F70
Substituted and inserted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 12, S.I. No. 34 of 2016.
Surplus.
(1857, s. 304)
86.—(1) If the estate of any bankrupt is sufficient to pay F71[one euro in the euro], with interest at the rate currently payable on judgment debts, and to leave a surplus the Court shall order such surplus to be paid or delivered to or vested in the bankrupt, his personal representatives or assigns.
(2) The order shall for all purposes be deemed to be a conveyance, assignment or transfer of property and, where appropriate, may be registered accordingly.
Annotations:
Amendments:
F71
Substituted (1.01.2002) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 7(2), commenced as per s. 7(2).
Bankruptcy (Amendment) Act 2015
Definitions
1. In this Act—
“Act of 1988” means the Bankruptcy Act 1988 ;
“Act of 2012” means the Personal Insolvency Act 2012 .
Amendment of section 3 of Act of 1988
2. Section 3 of the Act of 1988 is amended in subsection (1) by the insertion of the following definition:
“ ‘principal private residence’ has the same meaning as it has in section 2 of the Personal Insolvency Act 2012 subject to the modification that a reference to the debtor shall be taken to be a reference to the bankrupt;”.
Costs
Amendment of section 12 of Act of 1988
3. Section 12 (amended by section 146 of the Act of 2012) of the Act of 1988 is amended by the substitution of the following subsection for subsection (1):
“(1) The petitioning creditor shall at his own cost present his petition and prosecute it and, subject to subsection (2), the Court shall, at or after the hearing of the creditors’ petition under section 14, make an order for the payment of such costs out of the estate of the bankrupt in course of priority to be settled by rules of court.”.
Statutory Sitting
Amendment of section 17 of Act of 1988
4. (1) Subject to subsection (2), section 17 of the Act of 1988 is amended by the deletion of subsection (3).
(2) Where on the day of coming into operation of this section a statutory sitting has been appointed under section 17(3) of the Act of 1988 for that day or a subsequent day or on that day of coming into operation a statutory sitting appointed under that section stands adjourned, the Act of 1988 shall apply to that statutory sitting or adjourned statutory sitting, as the case may be, as if the amendments effected by subsection (1) and sections 3 , 5 , 13 and 14 had not been made.
Creditors’ Assignee
Amendment of section 18 of Act of 1988
5. Section 18 of the Act of 1988 is amended by the substitution of the following subsection for subsection (1):
“(1) The creditors of a bankrupt may—
(a) choose and appoint a person (in this Act referred to as the ‘creditors’ assignee’) to represent them in the administration of the bankrupt’s estate, and
(b) not later than 90 days after the date of the making of the adjudication order in respect of that bankruptcy apply to Court for confirmation of that appointment.”.
Books of Account
Amendment of section 19 of Act of 1988
6. Section 19 of the Act of 1988 is amended, in paragraph (a), by the substitution of “such books of account, other papers or records (including copies of such books of account, other papers or records held in electronic form)” for “such books of account or other papers”.
Amendment of section 21 of Act of 1988
7. Section 21 of the Act of 1988 is amended by the substitution of the following subsection for subsection (3):
“(3) The Court may require him to produce any books of account, other papers or records (including copies of such books of account, other papers or records held in electronic form) in his possession or control relating to the matters aforesaid but, where he claims any lien on books, papers or records produced by him, the production shall be without prejudice to that lien and the Court may determine all questions in relation to the lien.”.
Onerous Contract
Amendment of section 56 of Act of 1988
8. Section 56 of the Act of 1988 is amended—
(a) by the substitution of the following subsection for subsection (1):
“(1) Subject to subsection (5), where any of the property (other than after- acquired property) of a bankrupt consists of—
(a) any unprofitable contract, or
(b) any other property which—
(i) is unsaleable,
(ii) is not readily saleable for any reason whatsoever (including because the property is subject to any mortgage, charge, lien or other security), or
(iii) gives rise to a liability to pay money or perform any other onerous act,
the Official Assignee, notwithstanding that he has endeavoured to sell or has taken possession of the property or exercised any act of ownership in relation thereto, may, with the leave of the Court and subject to the provisions of this section, by writing signed by him, at any time disclaim the property.”,
and
(b) by the deletion of subsection (2).
Amendment of section 61 of Act of 1988
Family Home
9. Section 61 of the Act of 1988 is amended—
(a) by the substitution of the following subsection for subsection (4):
“(4) Notwithstanding any provision to the contrary contained in subsection (3), no disposition of property of a bankrupt, arranging debtor or person dying insolvent, which comprises—
(a) a family home (within the meaning of the Family Home Protection Act 1976 ) of the bankrupt or the bankrupt’s spouse, or
(b) a shared home (within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ) of the bankrupt or the bankrupt’s civil partner (within the meaning of that Act),
shall be made without the prior sanction of the Court and any disposition made without such sanction shall be void.”,
and
(b) by the substitution of the following subsection for subsection (5):
“(5) On an application by the Official Assignee under subsection (4) for an order for the disposition of a family home or shared home, the Court, notwithstanding anything contained in this or any other enactment, shall have power to order postponement of the disposition of the family home or shared home, as the case may be, having regard to the interests of the creditors, spouse or civil partner (within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ), and any dependants, of the bankrupt, arranging debtor or person dying insolvent, as the case may be, as well as to all the circumstances of the case.”.
Discharge First Anniversary
Amendment of section 85 of Act of 1988
10. Section 85 (amended by section 157 of the Act of 2012) of the Act of 1988 is amended—
(a) by the substitution of the following subsections for subsections (1) and (2):
“(1) Subject to subsection (2) and section 85A, every bankruptcy shall, on the 1st anniversary of the date of the making of the adjudication order in respect of that bankruptcy, unless prior to that date the bankruptcy has been discharged or annulled, stand discharged.
(2) (a) Where an adjudication order in respect of a bankruptcy would, but for section 10 of the Bankruptcy (Amendment) Act 2015, expire on any day during the period of 6 months from the commencement of that section, the bankruptcy concerned shall, subject to section 85A, stand discharged on that day unless it has otherwise been discharged or annulled.
(b) Where an adjudication order in respect of a bankruptcy would, but for section 10 of the Bankruptcy (Amendment) Act 2015, expire at any time after the expiration of 6 months from the commencement of that section, the bankruptcy concerned shall, subject to section 85A, stand discharged on the later of—
(i) 6 months after that commencement, or
(ii) one year from the date that the adjudication order was made,
unless it has otherwise been discharged or annulled.”,
(b) in subsection (3), by the substitution of “Subject to subsection (3A), where a bankruptcy is discharged” for “Where a bankruptcy is discharged”, and
(c) by the insertion of the following subsections after subsection (3):
“(3A) Subject to subsections (3B) to (3F), where on the 3rd anniversary of the date of the making of the adjudication order in respect of a bankruptcy—
(a) the unrealised property of the bankrupt referred to in subsection (3) includes an estate or interest in what was, at the date of the making of the adjudication order, the family home, shared home or principal private residence of the bankrupt, and
(b) in the case of the family home or shared home, the Official Assignee has not applied to the Court for an order for sale of that home,
that estate or interest shall, on that 3rd anniversary, stand re-vested in the bankrupt without the need for any conveyance, assignment or transfer.
(3B) Subject to subsections (3E) and (3F), where prior to the 3rd anniversary of the date of the making of the adjudication order in respect of a bankruptcy the Official Assignee—
(a) has applied to the Court for an order for sale in respect of what was at the date of that adjudication the family home or shared home of the bankrupt, and
(b) that application is dismissed by the Court,
the Court shall, unless it does not consider it just to do so in all the circumstances, make an order that the estate or interest of the bankrupt in that family home or shared home shall stand re-vested in the bankrupt from such date as is specified in the order without the need for any conveyance, assignment or transfer.
(3C) Subject to subsections (3E) and (3F), subsection (3A) shall not apply where at any time after the date of the making of the adjudication order in respect of the bankruptcy but prior to the 3rd anniversary of that date—
(a) the Official Assignee and the bankrupt have entered into an agreement in writing, for consideration or otherwise, that any estate or interest of the bankrupt in what was, at the date of adjudication, the family home, shared home or principal private residence of that bankrupt will not re-vest in that bankrupt, or
(b) on application by the bankrupt or the Official Assignee, the Court, where it considers it just to do so, makes an order that any estate or interest of the bankrupt in what was, at the date of adjudication, the family home, shared home or the principal private residence of that bankrupt will not re-vest in that bankrupt.
(3D) Subsection (3A) shall not apply where, on application by the Official Assignee at any time after the date of the making of the adjudication order in respect of that bankruptcy but prior to the 3rd anniversary of that date, the Court substitutes for that 3rd anniversary such longer period as the Court considers just in all the circumstances.
(3E) Where the Court makes an order under subsection (3D), subsections (3A), (3B) and (3C) shall apply subject to the modification that each reference to the 3rd anniversary in those subsections shall be taken to be a reference to the longer period substituted by the Court under subsection (3D) for such 3rd anniversary.
(3F) Where an order of adjudication in bankruptcy was made more than 2 years and six months prior to the day of coming into operation of section 10 of the Bankruptcy (Amendment) Act 2015, subsections (3A), (3B) and (3C) shall apply subject to the modification that each reference to the 3rd anniversary in those subsections shall be taken to be a reference to the day falling 6 months after the day of coming into operation of that section.
(3G) Where an estate or interest in a family home, shared home or principal private residence has re-vested in a bankrupt in accordance with this section, the Official Assignee shall, on the application of the bankrupt, issue a certificate in such form as may be prescribed confirming that the estate or interest has re-vested in that bankrupt.”,
and
(d) by the substitution of the following subsection for subsection (6):
“(6) (a) In this section and in sections 85A to 85D, ‘bankrupt’ includes personal representatives and assigns.
(b) In this section, ‘family home’ and ‘shared home’ have the same meaning as they have in section 61.”.
Amendment of section 85A of Act of 1988
Postponement of Discharge
11. Section 85A (inserted by section 157 of the Act of 2012) of the Act of 1988 is amended by the substitution of the following subsection for subsection (4):
“(4) Where the Court is satisfied that the bankrupt has—
(a) failed to co-operate with the Official Assignee in the realisation of the assets of the bankrupt, or
(b) hidden from or failed to disclose to the Official Assignee income or assets which could be realised for the benefit of the creditors of the bankrupt,
the Court may, where it considers just to do so, order that, in place of the discharge provided for in section 85, the bankruptcy shall stand discharged on such later date—
(i) being not later than the 8th anniversary of the date of the making of the adjudication order, as the Court considers just, or
(ii) being not later than the 15th anniversary of the date of the making of the adjudication order, which the Court considers just in view of the seriousness of the failure to co-operate referred to in paragraph (a) or the extent to which income or assets referred to in paragraph (b) were hidden or not disclosed, or both, as the case may be.”.
Bankruptcy Payment Order
Amendment of section 85D of Act of 1988
12. Section 85D (inserted by section 157 of the Act of 2012) of the Act of 1988 is amended—
(a) by the substitution of the following subsections for subsection (3):
“(3) Subject to subsections (3A) and (3B), an order made under subsection (1) shall have effect for no longer than 3 years from the date of the order coming into operation, and where, during the order’s validity, the Court has varied the order under subsection (5), such variation shall not cause the order to have effect for a period of more than 3 years, and in any event, any order made under subsection (1) or varied under subsection (5) shall cease to have effect on the 4th anniversary of the date on which the bankrupt was adjudicated bankrupt.
(3A) (a) Where a bankruptcy payment order would, but for section 12 of the Bankruptcy (Amendment) Act 2015, expire on any day during the period of 6 months from the commencement of that section, the bankruptcy payment order concerned shall, subject to subsection (3B), stand discharged on that day unless it has otherwise been discharged or annulled.
(b) Where a bankruptcy payment order would, but for section 12 of the Bankruptcy (Amendment) Act 2015, expire at any time after the expiration of 6 months from the commencement of that section, the bankruptcy payment order concerned shall, subject to subsection (3B), stand discharged on the later of—
(i) 6 months after that commencement, or
(ii) 3 years from the date that bankruptcy payment order was made,
unless it has otherwise been discharged or annulled.
(3B) Where the Court has made an order under section 85A(4), the bankruptcy payment order made under subsection (1) shall have effect for no longer than 5 years from the date of that bankruptcy payment order coming into operation, and where, during that bankruptcy payment order’s validity, the court has varied that order under subsection (5) such variation shall not cause that order to have effect for a period of more than 5 years, and in any event, any bankruptcy payment order made under subsection (1) or varied under subsection (5) shall cease to have effect on the 8th anniversary of the date on which the bankrupt was adjudicated bankrupt.”.
Order for winding up
13. The Act of 1988 is amended by the substitution of the following section for section 110:
“110. Where at least three-fifths in number and value of the creditors voting at a meeting of the creditors, either in person or by a person authorised in writing in that behalf, by resolution declare that the estate of the bankrupt be wound up by a trustee and a committee of inspection, and appoint for that purpose a trustee and a committee of inspection of not more than 5 creditors qualified to vote at the meeting, the Court may on application being made to it in that behalf not later than 90 days after the date of the making of the adjudication order in respect of that bankruptcy, order that the property of the bankrupt be so wound up.”.
Trustee in Bankruptcy
Amendment of section 112 of Act of 1988
14. Section 112 of the Act of 1988 is amended—
(a) by the substitution of the following subsection for subsection (1):
“(1) In the winding up the trustee shall be subject to the control of the Court and shall have regard to any directions given to him by the committee of inspection or by resolution of the creditors.”,
and
(b) in subsection (3), by the substitution of “Where on an application to it under section 110 the Court makes an order referred to in that section it shall at the same time make provision for” for “The statutory sitting shall make provision for”.
Amendment of section 123 of Act of 1988
Offences
15. Section 123 of the Act of 1988 is amended in subsection (1) —
(a) by the substitution of the following paragraph for paragraph (c):
“(c) fails to deliver up to the Official Assignee, or as he or the Court directs, all books, papers and records (including copies of such books, papers and records held in electronic form) in his possession or under his control relating to his estate and which he is required by law to deliver up, or”,
(b) by the substitution of the following paragraph for paragraph (h):
“(h) prevents the production of any book, paper or record (including copies of any book, paper or record held in electronic form) affecting or relating to his estate, or”,
(c) by the substitution of the following paragraph for paragraph (i):
“(i) conceals, destroys, mutilates or falsifies or is privy to the concealment, destruction, mutilation or falsification of any book, paper or record (including any such book, paper or record held in electronic form) affecting or relating to his estate, or”,
and
(d) by the substitution of the following paragraph for paragraph (j):
“(j) makes or is privy to the making of any false entry in any book, paper or record (including any such book, paper or record held in electronic form) affecting or relating to the estate, or”.
Short title, collective citation and commencement
16. (1) This Act may be cited as the Bankruptcy (Amendment) Act 2015.
(2) The Bankruptcy Acts 1988 to 2011 and this Act may be cited together as the Bankruptcy Acts 1988 to 2015.
(3) This Act shall come into operation on such day or days as the Minister for Justice and Equality may by order appoint, either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.