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CII > Module 11 - Bankruptcy Continued > Flashcards

Module 11 - Bankruptcy Continued Flashcards

1
Q

Considerations when fixing the Basis of Fees

A

Complexity of Case;
Responsibilities to be looked after;
Excessive Work;
Value of Assets

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2
Q

Different fee basis

A

% of Value of Assets realised or Distributed;
Time properly given attending to matters;
A Set Amount

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3
Q

What is Rule 18.23?

A

Material and substantive change in circumstances can apply to change remuneration

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4
Q

What is Rule 18.24?

A

Can draw fees in excess of original basis with reasons, details, new timings, and expected hourly rate of new work

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5
Q

Guiding Principles for Fees?

A

Reasonable;
Transparent;
Consistent;
Useful to Creditors;
Proportionate to Case

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6
Q

Reasons to form a Committee?

A

Represent Creditor Wishes;
Police activities of Trustee;
Provide Expert guidance / views;
Agree Remuneration;
Sanction specific actions of Trustee;
Receive reports from trustee;
Request meetings from trustee

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7
Q

Key Facts of Creditors’ Committees

A

3 - 5 Members;
Inform creditors of their right to form every time they are contacted;
Trustee must report to Committee;
Committee Member cannot profit from membership;
Member must leave Committee if absent for 3 consecutive meetings;
Trustee to send written report to Committee when requested

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8
Q

What is Section 284?

A

‘Post petition disposition’. Disposal of assets after the petition but before ‘vesting’ (when trustee takes charge)

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9
Q

What is Section 340?

A

Disposal of assets before the petition, PREFERENCE

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10
Q

What is the Defence against Section 284 for recipients of a disposition?

A

Section 284(4);
Received property before commencement of Bankruptcy;
Received without notice of Bankruptcy;
Received it for Value;
Received in Good Faith;

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11
Q

Transactions at an Undervalue in Personal Insolvency, which Section?

A

Section 339

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12
Q

3 Things to Prove in Section 339?

A

Transaction was a gift (no consideration involved / consideration was significantly less);
Anterior Period / Relevant Time (5 years back from date of petition);
Insolvency (if transaction took place within 2 years from petition - you DO NOT NEED to prove insolvency / if transaction took place between 2 and 5 years - you do need to prove insolvency. But insolvency is presumed if the party is connected)

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13
Q

4 Remedy Options for Section 339?

A

Any property returned to Trustee;
Any proceeds from sale transaction;
Release or discharge of any security given by the Bankrupt;
Pay moneys to the Trustee representing benefit received

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14
Q

What is Section 340? And what are the 3 things to prove?

A

Preferences;
Desire - influenced by desire to place other party in better position than if preference hadn’t been given;
Anterior Period - 6 months (unconnected) - 2 years (connected) - 5 years (if transaction was also TAUV);
Insolvency - at the time of the transaction, or as a result of the transaction

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15
Q

What is Section 342a? And how many things do you need to prove? And what are they?

A

Excessive Pension Contributions;
Two;
Contributions were ‘excessive’;
Unfairly prejudiced Creditors

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16
Q

What is Section 343?

A

Extortionate Credit Transactions

17
Q

Define Extortionate Credit Transaction?

A

A transaction that is ‘exorbitant’ or otherwise ‘grossly contravenes the ordinary principles of fair dealing’

18
Q

Anterior period for Extortionate Credit Transactions

A

3 Years

19
Q

What is Section 423? How many things to Prove? What are they?

A

Transactions Defrauding Creditors;
2;
Whether it was a gift or significantly less consideration was received;
Intent - prejudice interests of victims or to defeat claim of claimant / potential claimant

20
Q

Who pursues Section 423 claims?

A

Victim rather than officeholder

21
Q

What is the anterior period for Section 423?

A

TRICK QUESTION - THERE IS NO ANTERIOR PERIOD FOR SECTION 423

22
Q

What is Section 285?

A

Court Imposed Moratorium;
Restricts actions against Bankrupts;
Prevents creditors proceeding against bankrupt or property;
Not general or automatic stay on proceedings

23
Q

What is Section 353?

A

Non-Disclosure - not provided details of their assets

24
Q

What is Section 354?

A

Concealment of property - purposefully hidden assets

25
Q

What is Section 355?

A

Concealment of Books and papers; also falsification of books and papers

26
Q

What is Section 356?

A

False statements

27
Q

What is Section 357?

A

Fraudulent disposal of property

28
Q

What is Section 359?

A

Fraudulent dealing with property obtained on credit - sold a vehicle on hire purchase etc

29
Q

What is Section 360?

A

Obtaining credit and engaging in business

30
Q

What is a BRU? What is a BRO?

A

Bankruptcy Restriction Undertaking;
Bankruptcy Restriction Order

31
Q

When to issue a BRU?

A

Failing to keep records which account for loss of property by bankrupt or by business carried on by him, where the loss occurred in a period beginning 2 years before bankruptcy petition or order and ending with date of application.

32
Q

When to issue a BRO?

A

Failing to produce records on demand by OR or Trustee;
Entering TAUV;
Preferences;
Excessive pension contribution;
Failing to provide goods that were wholly or partly paid for;
Trading at time before commencement of bankruptcy when they knew they could not pay debts;
Incurring before commencement debt the bankrupt had no real expectation to pay;
Failing to account to Court / OR / Trustee;
Carrying on gambling / unreasonable extravagance / ration hazard speculation which contributed to debt (between petition and commencement);
Neglect of business affairs;
Fraud or fraudulent breach of trust;
Failing to cooperate with Trustee of OR

33
Q

What is Section 333?

A

Force cooperation of Bankrupt to investigations

34
Q

What is Section 279?

A

Suspend discharge of Bankrupt

35
Q

What is Section 290?

A

Public examination

36
Q

What is Section 364?

A

Apply for warrant of arrest

37
Q

What is Section 365?

A

Seizure of Bankrupt’s property

38
Q

What is Section 366?

A

Private examination

39
Q

What is Section 370?

A

Power to appoint Special Manager

CII (10 decks)

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