Bankruptcy Act 1988

Functions of Official Assignee in bankruptcy and vesting arrangements.

(New)

61

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 F53 [ ] lease, sub-lease or otherwise and to sell F53 [ ] 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 F54 [ 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 F55 [ 130 ] by way of indemnity in respect of costs incurred by him.

F56 [ (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. ]

F57 [ (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:

F53

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.

F54

Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 30(e), commenced on enactment.

F55

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.

F56

Inserted (2.07.2002) by European Communities (Personal Insolvency) Regulations 2002 (S.I. No. 334 of 2002), reg. 3(b).

F57

Substituted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 9, S.I. No. 34 of 2016.

Editorial Notes:

E18

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.

E19

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.

E20

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.