Bankruptcy usually ends automatically after three years unless the Trustee files an objection. In some circumstances bankruptcy can be extended to five or eight years. Bankruptcy may also be annulled if certain conditions are met.
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”).
On 19 October 2017, the Bankruptcy Amendment (Enterprise Incentives) Bill 2017 (Cth) was introduced to federal parliament. This Bill proposes to reduce the term of bankruptcy to one year. At the time of writing (30 June 2018), this Bill has not been passed.
The Bankruptcy Act previously contained early discharge provisions; however, these were abolished for debtors who became bankrupt on or after 5 May 2003.
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 Receiver and entered on the National Personal Insolvency Index. 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 section 149D of the Bankruptcy Act.
Some of the grounds on which the period of bankruptcy can be extended to eight years are:
• failing to pay compulsory income contributions;
• failing to provide details of property or income; or
• failing to disclose a liability that existed before the date of bankruptcy.
Some of the grounds of objection on which the period of bankruptcy can be extended to five years are:
• failing to notify the trustee of a change of address;
• failing to disclose all debts and creditors; or
• failing to attend an interview.
Failure to disclose particulars of debts and creditors does not have to be deliberate in order 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.
A bankruptcy can be annulled if:
• a bankrupt pays all debts in full, including interest and fees owing to the trustee; or
• the bankrupt makes an offer to pay their debts which is accepted by creditors and approved by the court; or
• 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 (s 153B).
In general, a discharged bankrupt is not released from, and continues to be liable to pay, the following debts:
• debts incurred after the commencement of the bankruptcy;
• debts incurred by fraud;
• maintenance arrears (subject to a court order to the contrary);
• non-provable debts such as unliquidated damages, HELP debts, etc.;
• income contributions due during the bankruptcy; and
• 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 section 152 to the trustee in the realisation and distribution of property vested in the trustee.