The effect of bankruptcy on debts
After bankruptcy, a bankrupt is released from most ‘provable’ debts. A bankrupt is not released from any ‘non-provable’ debts discussed below.
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The term ‘provable’ means that a creditor can lodge a proof of debt or a claim to be paid and then be paid a proportion of the money (if any) raised by the sale of the bankrupt’s property.
Most debts for which the bankrupt was liable at the date of bankruptcy are provable in bankruptcy.
Provable debts that are not wiped by bankruptcy
Some provable debts are not wiped by bankruptcy (Bankruptcy Act s 153(2)). Debt includes liability (s 5). Provable debts that are not wiped by bankruptcy are debts:
incurred by fraud;
under a maintenance agreement order; or
in relation to a bond or to certain other criminal law penalties.
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The main categories of debts that are non-provable (and so not wiped by bankruptcy) are:
debts and liabilities incurred after the date of bankruptcy – ‘present or future, certain or contingent’ (Bankruptcy Act s 82(1));
court fines or penalties (Bankruptcy Act s 82(3));
Higher Education Loan Program (HELP) debts under the Higher Education Support Act 2003 (Cth);
student loans agreed to before a student becomes bankrupt (Student Assistance Act 1973 (Cth) s 12ZW); and
unliquidated damages (an amount claimed by a creditor for damages that has not yet been fixed by formal agreement or by the court).
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The trustee’s rights to a secured property are subject to the rights of the secured creditor.
A secured creditor keeps its interest in any secured goods or land (property) by way of its security even after bankruptcy.
The secured creditor’s right to sell the security property
A secured creditor can only force a sale of the property if the debtor is in breach of the contract.
Section 302 of the Bankruptcy Act makes void any provision in a secured credit contract (bill of sale, mortgage, lien, charge or security agreement under the Personal Property Securities Act 2009 (Cth)) that provides that a borrower might be in breach of one of these secured credit contracts merely by entering into bankruptcy.
This means that a creditor who has one of these secured credit contracts cannot take action against a debtor simply because the debtor bankrupts.
The trustee’s right to sell the security property
The trustee can sell a security property whether or not the bankrupt has defaulted in payments. There would have to be sufficient equity in the property to make the sale commercially practicable. If sold, the proceeds of sale pay the secured creditor and the balance goes to the bankrupt estate.
Security over furniture and other household goods
Some fringe lenders have taken mortgages over people’s essential household goods to secure payment of debts. The threat to repossess goods is then used to force payment of the debt even after bankruptcy. These types of mortgages are void under the National Credit Code (Bankruptcy Act s 50) and are known as ‘blackmail securities’. This type of mortgage could breach laws relating to unfair contract terms and/or unconscionable conduct (see Chapter 7.2: Consumer protection laws).
Seek advice from an organisation such as ASIC, the Consumer Action Law Centre or Consumer Affairs Victoria (see ‘Contacts’ in this chapter) if this is happening to you or your clients.
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The trustee has no power to prevent the sale of a house by the mortgagee if the bankrupt is in default under the mortgage. If the bankrupt is not in default, the mortgagee will not be able to take action against the debtor.
In this case, the bankrupt might be able to stay in the house and continue making payments, but the property will vest with the trustee and could be sold years later if the bankrupt’s equity increases sufficiently that it would be viable for the trustee to sell the house and land (see ‘Houses and land’, above).
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The bankrupt as guarantor
A debtor who has guaranteed someone else’s debt is released from any liability under the guarantee after bankruptcy. Such a debt should be included on the bankrupt’s statement of affairs as a debt.
The bankrupt’s friend or relative as guarantor
A bankrupt will be released from debts that have been guaranteed by someone else but the guarantor will not be released from the debt. The guarantor, or the person guaranteeing the bankrupt’s debt, is usually a friend or relative. Once the bankrupt stops paying the debt, the creditor usually takes action against the friend or relative under the guarantee. Therefore, many bankrupts want to continue paying such debts. The Bankruptcy Act does not prevent the bankrupt from doing this.
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Debts owed to friends and relatives usually result from a verbal not written contract. These debts should be shown on the statement of affairs as unsecured debts whether or not the contract is in writing. A bankrupt can, if they wish, continue to pay such debts after the date of bankruptcy.
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Unliquidated damages debts are not wiped by bankruptcy (Bankruptcy Act ss 82, 153). This is a technical area of law that affects many consumer debtors, especially those who have car accident debts.
Damages are ‘unliquidated’ if a court has not assessed them or if the parties involved have not agreed on the amount of damages.
Under section 82(2), ‘demands in the nature of unliquidated damages’ are not provable in bankruptcy unless they arise out of a breach of contract, promise or breach of trust.
A discharged bankrupt is only released from debts that are provable in the bankruptcy (s 153) and therefore will not be released from debts arising from unliquidated damages.
If a debtor has a property damage debt and legal action for the debt appears unlikely in the short term, the debtor should consider whether:
it is worth bankrupting on this debt – if this is the only debt it may not be worth bankrupting;
they are able to wait until the other party gets a court judgment against them; or
they can replace the claim for unliquidated damages with a claim under a contract or a deed by settling the claim.
Replacing a claim for unliquidated damages with a claim under a deed or contract
A settlement of a damages claim in a deed, or via an exchange of letters, can liquidate a damages claim. If the exchange of letters forms a contract the creditor will then have a claim in contract. If the settlement is in a deed, the creditor will have a claim under the deed. As a claim under a contract or a deed is provable in bankruptcy, the bankrupt should then be released from the claim by the bankruptcy.
Debtors should be aware that a creditor could always challenge this type of settlement and, if successful, the debt would then become unprovable and not extinguished by the bankruptcy.
The debtor must prove that the liquidation occurred at least the day before the hearing of the creditor’s petition or a few days before the presentation of a debtor’s petition. The debt will not be included in the bankruptcy if the liquidation occurs after the date of the bankruptcy.
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A bankrupt is not released from maintenance or child support debts on discharge unless the court orders otherwise (Bankruptcy Act s 153(2)(c)).
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Tax debts that arise before the date of the bankruptcy
Tax debts from before the date of bankruptcy are provable and extinguished after bankruptcy whether or not they have been assessed by the Australian Taxation Office (ATO).
If tax has not been assessed at the time of bankruptcy
If the ATO has not issued and served a notice of assessment at the time of the bankruptcy, a tax liability is a contingent liability and is provable under section 82 of the Bankruptcy Act.
If a debtor becomes bankrupt before the end of a financial year, the ATO can issue a tax assessment for the year to date. Once the bankrupt gets this separate assessment, they should only be liable for any tax amounts that arise after the bankruptcy. If the ATO refuses to issue a separate assessment for the year to the date of the bankruptcy, the bankrupt can consider appealing this decision.
Tax debts that arise after the date of the bankruptcy
Debts arising from tax periods after the date of bankruptcy are not provable.
Tax refunds
The Australian Taxation Office’s rights to take refunds
The ATO can take refunds during the period of the bankruptcy if the bankrupt has a tax debt from before the bankruptcy. If a bankrupt is entitled to a refund, the ATO can offset the refund due during the period of the bankruptcy against tax debts, including provable tax debts incurred before the bankruptcy.
In general, a creditor is not entitled to take any action in respect of a provable debt once a bankruptcy has commenced (Bankruptcy Act s 58(3)). The stay of proceedings in section 58(3) does not apply to obligations incurred after bankruptcy has commenced.
The trustee’s right to take refunds
The trustee can take a refund if it relates to a year before the bankruptcy. If the refund relates to a year after the date of the bankruptcy, it is treated as income and the trustee takes the amount into account when calculating income contribution.
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Except in limited circumstances, Centrelink debts are wiped by bankruptcy. Debtors should seek advice from Social Security Rights Victoria (see ‘Contacts’ at the end of this chapter), from a lawyer, or from a financial counsellor (see Chapter 5.4: Financial counselling services). Generally, the following applies:
Centrelink should stop all debt recovery action on the client’s Centrelink debts as soon as it receives notification of a client’s bankruptcy from AFSA.
Centrelink should stop all debt recovery action for the bankruptcy period; it should also refund any payments/withholdings that it has deducted after the date of bankruptcy and before discharge.
Non-fraudulent Centrelink debts are generally extinguished by bankruptcy.
Fraudulent Centrelink debts are not extinguished by bankruptcy. Centrelink will recommence withholdings for fraudulent debts when the debtor is discharged from bankruptcy.
Centrelink overpayments
Centrelink debts are not wiped by bankruptcy if the debt occurred as a result of a consumer’s fraudulent behaviour. Centrelink can make incorrect decisions on what constitutes fraudulent behaviour.
As a result, many discharged bankrupts might be repaying Centrelink debts that should have been wiped by the bankruptcy.
If a debtor is bankrupting (or has bankrupted) and has a Centrelink debt, they should get advice on:
whether there are circumstances to support an application that the debt was not fraudulently incurred;
the review processes within Centrelink and the ART in relation to challenging a Centrelink decision to pursue the debt after bankruptcy; and
whether a debtor who has already been discharged from bankruptcy can apply for a refund of any payments made to, or taken by, Centrelink.
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Penalties or fines imposed by a court in respect of an offence against a law are not provable in bankruptcy (Bankruptcy Act s 82). This does not apply to proceeds of crime orders and, at the other extreme, to parking fines issued by a local council.
The application of the Bankruptcy Act to fines is a complex area of law and legal advice should be obtained where a person is considering bankrupting on a fine, as the particular circumstances surrounding the imposition of a fine may impact upon whether or not that fine is extinguished upon discharge from bankruptcy.
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A debt incurred by fraud, or fraudulent breach of trust, can be provable in bankruptcy but is generally not extinguished on discharge from bankruptcy (Bankruptcy Act s 153(2)(b)).
After bankruptcy, a debtor can apply to stay (suspend) an action by the creditor in relation to a fraudulent debt. Such an application, if successful, would have the same effect as extinguishing the debt (s 60(1)(b)).
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Debts may arise from compensation or restitution orders (e.g. Sentencing Act 1991 (Vic) ss 74, 77, 84, 85B) and from pecuniary penalty orders.
Pecuniary penalty orders require payments to the Commonwealth for amounts based on the benefits a person has derived from an offence or from unlawful activity (Proceeds of Crime Act 2002 (Cth) pt 2).
Non-provable orders
Section 82(3A) of the Bankruptcy Act provides that an ‘amount payable under an order made under a proceeds of crime law is not provable in bankruptcy’.
Provable orders
The Bankruptcy Act does not categorise other types of restitution orders as being either provable or not provable. For example, a debt payable under a restitution order is a provable debt and a debtor can apply for a stay of proceedings insofar as it is required restitution (s 60(1)(b)).
Deciding whether to cease payment under the order
Before deciding that bankruptcy means that you can cease payment under a restitution order, you should first get a copy of the order to decide what type of restitution order has been made.
Check that:
it is not an order made under proceeds of crime legislation;
the debtor will not face a criminal penalty or other adverse consequence for failure to pay; and
the debtor does not need to apply for a stay of restitution.
Other adverse consequences of non-payment
Even if the order is not one made under proceeds of crime legislation, check to see if the order has any adverse consequences on non-payment.
However, note that the court may exercise discretion to stay any legal process against the debtor, including imprisonment for non-payment of a restitution or compensation order (Bankruptcy Act s 60(1)).
Restitution and compensation orders and fraud
If the restitution order has been made in relation to a fraud, the debt arising under the order might be provable but might not be extinguished after bankruptcy (see ‘Debts resulting from fraud’, above).
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Where a debt is in joint names and one debtor is bankrupt, the non-bankrupt debtor, in almost all cases, continues to be liable for the whole of the debt. (See also ‘Guaranteed debts’, above.)
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Rent debts are wiped in bankruptcy. However, this does not prevent the landlord from evicting a tenant for non-payment of rent.
Office of Housing rent debts
A bankrupt who rents from the Office of Housing (Department of Families, Fairness and Housing) may continue their tenancy effectively without disruption, subject to approval of the Office of Housing. Therefore, before bankrupting, a debtor should discuss their circumstances with the Office of Housing to confirm what arrangements can be made.
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The law is that utilities and telco bills which relate to the period up to the date of bankruptcy are wiped by the bankruptcy, but the bankrupt must still pay bills which relate to the use of these services after the date of bankruptcy. After the bankruptcy, utility and telco companies sometimes open a new account and require payment of a security deposit, or restrict the service in some way.
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Commonwealth Government student loans are not provable in bankruptcy (Bankruptcy Act s 82(3AB)). These loans are HELP debts, Vocational Education and Training (VET) Student Loan debts, student start-up loan debts, ABSTUDY student start-up loan debts and trade support loan debts. They may be recovered during and after bankruptcy.
For more information about higher education debts and their effect on bankruptcy, contact AFSA, or the VET Student Loans Ombudsman (see ‘Contacts’ at the end of this chapter) or the ATO’s personal tax information line on 13 28 65.
The effect of bankruptcy on debts
Chapter: 5.3: Understanding bankruptcy
Contributor: Paul Latimer, Adjunct Professor, Swinburne Law School; Volunteer lawyer, Fitzroy Legal Service
Current as of: 1 September 2024
Law Handbook Page: 327
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