Part X – Personal Insolvency Agreements (s188)

BANKRUPTCY ACT 1966 – SECT 188

Debtor may authorise trustee or solicitor to be controlling trustee

             (1)  A debtor who desires that his or her affairs be dealt with under this Part without his or her estate being sequestrated and:

                     (a)  is personally present or ordinarily resident in Australia;

                     (b)  has a dwelling-house or place of business in Australia;

                     (c)  is carrying on business in Australia, either personally or by means of an agent or manager; or

                     (d)  is a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager;

may sign an authority in accordance with the approved form naming and authorising a registered trustee, a solicitor or the Official Trustee to call a meeting of the debtor‘s creditors and to take control of the debtor‘s property.

             (2)  An authority signed by a debtor under this section is not effective for the purposes of this Part unless:

                     (a)  if the person authorised is a registered trustee or solicitor–the person has consented in writing to exercise the powers given by the authority; and

                    (aa)  if the person authorised is the Official Trustee–an Official Receiver has given the debtor written approval to name the Official Trustee in the authority.

       (2AA)  If the person authorised is a registered trustee or a solicitor, then, before the person consents to exercise the powers given by the authority, the person must give the debtor the information prescribed by the regulations.

       (2AB)  If the person authorised is the Official Trustee, then, before the Official Receiver gives approval to name the Official Trustee in the authority, the Official Receiver must give the debtor the information prescribed by the regulations.

          (2A)  The regulations may prescribe the circumstances in which a person (other than the Official Trustee or a registered trustee) is ineligible to act as a controlling trustee under this Part.

          (2B)  An authority signed by a debtor under this section is not effective for the purposes of this Part if, at the time the authority is signed, the person authorised:

                     (a)  is not the Official Trustee or a registered trustee; and

                     (b)  is ineligible, under the regulations, to act as a controlling trustee under this Part.

          (2C)  If the person authorised is a registered trustee or solicitor, the authority signed by the debtor under this section is not effective for the purposes of this Part unless, before the person authorised consents to exercise the powers given by the authority, the debtor gives to the person authorised:

                     (a)  a statement of the debtor‘s affairs; and

                     (b)  a proposal for dealing with them under this Part.

Note:          Section 6A sets out requirements for statements of affairs.

          (2D)  If the person authorised is the Official Trustee, the authority signed by the debtor under this section is not effective for the purposes of this Part unless, before an Official Receiver gives approval to name the Official Trustee in the authority, the debtor gives to the Official Receiver:

                     (a)  a statement of the debtor‘s affairs; and

                     (b)  a proposal for dealing with them under this Part.

Note:          Section 6A sets out requirements for statements of affairs.

          (2E)  A proposal for dealing with the debtor‘s affairs under this Part must include a draft personal insolvency agreement.

Note:          Section 188A sets out requirements for personal insolvency agreements.

             (3)  An authority under this section that is effective for the purposes of this Part is not revocable by the debtor.

             (4)  Subject to subsection 192(1), a debtor cannot give an authority within 6 months of giving another authority, unless the Court grants leave to do so.

             (5)  A registered trustee or solicitor who consents to exercise the powers given by an authority must, within 2 business days of consenting, give a copy of:

                     (a)  the authority; and

                     (b)  the debtor‘s statement of affairs;

to the Official Receiver.

             (6)  When an authority becomes effective, the person authorised by it becomes the controlling trustee.

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s188.html

More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966? The Act defines Bankruptcy Notices as follows:

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

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Bankruptcy – s40(1)(ha) to s40(8) Bankruptcy Act 1966.

bankruptcy

How does a Bankruptcy Notices under the Bankruptcy Act 1966 work?

BANKRUPTCY ACT 1966 – SECT 40(1)(ha)-s40(8)

Acts of bankruptcy

(1)  A debtor commits an act of bankruptcy in each of the following cases: ….

… (ha)  if the debtor gives the Official Receiver a debt agreement proposal;

                   (hb)  if a debt agreement proposal given by the debtor to the Official Receiver is accepted by the debtor’s creditors;

                   (hc)  if the debtor breaches a debt agreement;

                   (hd)  if a debt agreement to which the debtor was a party (as a debtor) is terminated under section 185P, 185Q or 185QA;

                      (i)  if he or she signs an authority under section 188;

                      (j)  if a meeting of his or her creditors is called in pursuance of such an authority;

                     (k)  if, without sufficient cause, he or she fails to attend a meeting of his or her creditors called in pursuance of such an authority;

                      (l)  if, having been required by a special resolution of a meeting of his or her creditors so called to execute a personal insolvency agreement or to present a debtor’s petition, he or she fails, without sufficient cause:

                              (i)  to comply with the requirements of this Act as to the execution of the agreement by him or her; or

                             (ii)  to present a debtor’s petition within the time specified in the resolution;

                            as the case may be;

                    (m)  if a personal insolvency agreement executed by him or her under Part X is:

                              (i)  set aside by the Court; or

                             (ii)  terminated;

                     (n)  if a composition or scheme of arrangement accepted by the debtor’s creditors under Division 6 of Part IV is:

                              (i)  set aside by the Court; or

                             (ii)  terminated;

                     (o)  if the debtor becomes insolvent as a result of one or more transfers of property in accordance with:

                              (i)  a financial agreement (within the meaning of the Family Law Act 1975); or

                             (ii)  a Part VIIIAB financial agreement (within the meaning of the Family Law Act 1975);

                            to which the debtor is a party.

             (2)  In calculating for the purposes of subparagraph (1)(d)(i) the period for which property has been held by the sheriff, any time between the date on which an interpleader summons in respect of the property is taken out and the date on which the proceedings on the summons are finally disposed of, settled or discontinued shall not be taken into account.

             (3)  For the purposes of paragraph (1)(g):

                     (a)  where leave is given by a court to enforce an award made on a submission to arbitration, being an award under which money is payable by a debtor to another person:

                              (i)  the award shall be deemed to be a final order obtained by that person against the debtor; and

                             (ii)  the arbitration proceedings shall be deemed to be the proceeding in which that final order was obtained;

                     (b)  a judgment or order that is enforceable as, or in the same manner as, a final judgment obtained in an action shall be deemed to be a final judgment so obtained and the proceedings in which, or in consequence of which, the judgment or order was obtained shall be deemed to be the action in which it was obtained;

                     (d)  a person who is for the time being entitled to enforce a final judgment or final order for the payment of money shall be deemed to be a creditor who has obtained a final judgment or final order;

                     (e)  a judgment or order for the payment of money made by the Court in the exercise of jurisdiction conferred on it by this Act shall be deemed to be a judgment or order the execution of which has not been stayed notwithstanding that it may not be enforceable at law by execution; and

                      (f)  an order made after the commencement of this paragraph under the Family Law Act 1975 for the payment by a person of arrears of maintenance for another person shall be deemed to be a final order against the first‑mentioned person obtained by the other person.

             (4)  The act of bankruptcy specified in paragraph (1)(j) shall be deemed to be committed on the day on which the notices calling the meeting are delivered or sent to the creditors or, if they are not all delivered or sent on the one day, on the day on which the last of the notices is so delivered or sent.

             (5)  The act of bankruptcy specified in paragraph (1)(l) shall be deemed to be committed on the day after the day on which the period within which the agreement is required to be executed by the debtor or the period within which the petition is required to be presented, as the case may be, expires.

             (6)  The act of bankruptcy specified in paragraph (1)(m) shall be deemed to be committed on the day on which the agreement is set aside or terminated, as the case may be.

             (7)  The act of bankruptcy specified in paragraph (1)(n) shall be deemed to be committed on the day on which the composition or scheme of arrangement is set aside or terminated.

          (7A)  For the purposes of paragraph (1)(o):

                     (a)  transfer of property includes a payment of money; and

                     (b)  a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person.

             (8)  This section applies, so far as it is capable of application, in relation to acts and things done or occurring, and omissions and failures to do acts or things occurring, before, or partly before and partly after, the commencement of this Act, as well as to acts and things done or occurring, and omissions and failures to do acts and things occurring, after the commencement of this Act.

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s40.html

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More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966? The Act defines Bankruptcy Notices as follows:

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

Mark J. Smith
Mark J. Smith

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Connect to Mark on LinkedIn.

Follow Mark on Twitter: https://twitter.com/mrmarkjsmith

Transcript

welcome back to business asset protection, mark smith is  my name. we’re up to part seven just of section 40 of the bankruptcy act, and there is we’re looking at acts of bankruptcy and there is heaps and heaps of these acts of bankruptcy and to be honest we could go for a week and and still probably not get through them all so today we’re just going to smash through the rest of them from section 40(1)(ha)
all the way through to section 40(8)
and there’s a lot to get through so strap on your seatbelt and here we go. well here we are section 40(1) of the bankruptcy act. a debtor commits an act of bankruptcy in each of the following cases …. now we’ve gone through a b c d e a double d a d e f g h and we’re now up to section HA if the debtor gives and look i’m sorry this will take we’ve got ages to go we’ve all got to go all the way down to h and i’m going to just skim through these and i apologize it is a skim if you’ve got any questions at all come to our website bottom right hand corner dcpartners.solutions and chat with us and what does part 2 of section 40 of the bankruptcy act what does section part 8  know mean? so by all means i understand it’s a scheme we’ll just go through these as quickly as we can and we’ll get through and any questions you’ll come come and talk to me offline we’re available anytime chat with us using the chat tools or call us on 1-300-327-123 now let’s have a look at section ha if a debtor gives the official receiver that’s a mob called afsa afsa.gov.ou a debt agreement so there are these are acts of bankruptcy and once you commit them you cannot go back from them, so very very important that you know that it is an act of bankruptcy and then you know that the what the consequences might be so a debt agreement now we’ll look at debt agreements later in our coverage of the bankruptcy act we’re only looking at what are acts of bankruptcy. so if you’ve got any questions about debt agreements or any of the other things that you come across coming through the rest of this particular video message me offline. hb if a debt agreement proposal is given by the debtor to the official receiver so again official receiver is afsa.gov.au this is out and it’s accepted by your creditors well that’s an act of bankruptcy as well so giving and then if you breach that hc if you breach that well another act of bankruptcy if and so these can you can see that these can accumulate so you might commit an act by giving the official receiver hi giving the official receiver debt agreement proposal but then if you breach it there’s another act of bankruptcy and so you can see that all of these ongoing acts a creditor if you don’t keep your end of the bargain hey credit i can use that against you in a creditor’s petition and we are going to have a look at creditors petitions that’s why we need to wrap this up if you hc if the debtor breaches a debt agreement well there you go that is a an act of bankruptcy hd if a debt agreement to which the party the debtor party was a party is terminated. so if you cease your obligations under that agreement another act. I – if he or she signs an authority under section 188 we’ll look at one section 188 now at the bottom of this particular blog or maybe it’s right at the very top of the of www.dcpartners.solutions of the particular blog that you might be looking at on on on this video you’ll see a link to section 188 so a tag a tag and so you can go and there’s a tag for date agreement there’s a tag for acts of bankruptcy so if you want to go back and see all the different extra bankruptcy use those tags aye did we look at that if he or she signs an authority under section 188 so what does that mean we’ll go to the tag above and look at the section 188 comments now at the moment there is no section 188 comments but they’re coming so this is a ongoing process. J if a meeting of his or her creditors is called in pursuance of such an authority. some of these things might make a bit more sense using the tags K if without sufficient cause he or she fails to attend a meeting of his or her creditors in pursuance of such an authority. so are you getting the gist that once you once you’re into this process of a formal process of insolvency, there are a number of potential acts of bankruptcy that can be used and no 99% of the acts of bankruptcy that are relied on in the courts is the failure under under a bankruptcy notice that’s s40(1)(g) – 99% we’ll just go back up to that 99% maybe 98% of the ones where someone does go bankrupt, happen when happened when you’ve issued a bankruptcy notice and a demand here … ralph plays $106,551 and they fail okay so 99 98 are of that kind. the other 2% percent as i said relate to some of these i guess more obscure methods of committing acts of bankruptcy and they are nevertheless acts of bankruptcy which the courts can use to issue what’s called a sequestration order. so that’s a new concept and there’s a tag above not on youtube but on our web page so go to our web page dcpartners.solutions and this particular blog has a tag for what a sequestration so there will be more and more of these posts and blogs and explanations about sequestration and other other things l where did we get to sorry did we get to k? L if having been required by a special resolution of meeting me of a meeting of his or her creditors to execute a personal insolvency agreement and then you fail.
m if a personal insolvency agreement executed by you is set aside by court or if you if it’s terminated or it’s … well it it means that once you’re in you can go to the next there can be a further consequence okay. it’s bankruptcy don’t get me wrong it can provide a lot of protection and a lot of yeah i guess the protection is one way to look at it a relief it can offer relief to a to a debtor who accepts that they have unmanageable debts if you only go part way in and you do one of these part X agreements again up above look at the part X tag and if you want to look at more content if you go part way in it can accelerate you can go to there can be further acts of bankruptcy and that can have consequences. N if a composition or scheme of arrangements. scheme of arrangements we can’t possibly explain all of this one bit at a time but if you’ve got a question again use the tags call us 1300 327123 or instant chat with us using the tool in the bottom corner in if a composition or scheme of arrangement executed under division six of part four is set aside. all these different concepts. again these tags should help you. O if the debtor becomes insolvent as a result of one or more transfers under the family law act so if you’re again if you can’t pay your debts because you’ve gone through a divorce that can be an act of bankruptcy you’ve got to be very very very careful and it may not even be a divorce you you have a these financial binding agreements, so these are prenups these can get you into trouble as well. so an act of bankruptcy is you transfer out your your assets to your spouse. your wife your husband your whatever your companion. and these can have very serious consequences so much so that you could find your entire estate your entire estate is subject to a sequestration order possibly affecting your spouse. like the we we can’t look at all the powers right now but the powers are immense so let’s go on to now on to part two so this is section 40(2) … a person commits an act of bankruptcy oh no now these are not where you commit them but these explain a little bit further about the above acts so in calculating part two in calculating for the purposes of section 40(1)(d)(i) … the period of which that was where the sheriff turns up and attempts to sell your goods your channels and maybe your property these can be an act of bankruptcy so if you find you’re in one of these positions either someone owes you money or you owe someone else any money by all means instant chat with us using the tool or call us 1300-327123 section three well part 3 for the purposes of paragraph one g now that’s the one where someone issues a bankruptcy notice and gives you 21 days now it used to be 6 months during covid and you know there are a lot of ways that you can get around this all of these we we really can’t go through but there are ins and outs that’s what we will say ins and outs and a lot of complexity if you want us to explain it by all means give us a call 1300 327123

section 40(4) the the act of bankruptcy in paragraph 1j will be deemed to be committed now i’ll throw in a link to paragraph s40(1)(j) we’ve gone through that i think today i can’t remember all of these there are so many so look i think in wrapping up there is lots and lots and lots of complexity and again i think we probably best to say if you’re in in any position where the point is that there’s lots of risks in when you become insolvent or when you become under financial pressure there are lots and lots of risks and if you’re exposed to one of those risks and you attend a meeting you get a divorce there are many many risks and so probably the best thing to do if you if you think that you’re facing trouble give us a call 1-300-327-123 or use the chat tool bottom right hand corner www.dcpartners.solutions so we’re actually going to move on next probably here to bankruptcy notices and we’ll have a look at those and if you’ve got any questions by all means chat with us call us 1300 1-300-3273 or use the chat tools www.dcpartners.solutions …. thank you very much.

Bankruptcy – s40(1)(d-h) Bankruptcy Act 1966.

bankruptcy

How does a Bankruptcy Notices under the Bankruptcy Act 1966 work?

BANKRUPTCY ACT 1966 – SECT 40(1)(d-h)

  

Acts of bankruptcy

(1)  A debtor commits an act of bankruptcy in each of the following cases: ….

                   (d)  if:

                              (i)  execution has been issued against him or her under process of a court and any of his or her property has, in consequence, either been sold by the sheriff or held by the sheriff for 21 days; or

                             (ii)  execution has been issued against him or her under process of a court and has been returned unsatisfied;

                  (daa)  if the debtor presents a debtor‘s petition under this Act;

                   (da)  if the debtor presents to the Official Receiver a declaration under section 54A;

                     (e)  if, at a meeting of any of his or her creditors:

                              (i)  he or she consents to present a debtor‘s petition under this Act and does not, within 7 days from the date on which he or she so consented, present the petition; or

                             (ii)  he or she consents to sign an authority under section 188 and does not, within 7 days from the date on which he or she so consented, sign such an authority and inform the chair of the meeting, in writing, of the name of the person in whose favour the authority has been signed;

                      (f)  if, at a meeting of any of his or her creditors, he or she admits that he or she is in insolvent circumstances and, having been requested by a resolution of the creditors to bring his or her affairs under the provisions of this Act, he or she does not, within 7 days from the date of the meeting, either:

                              (i)  present a debtor‘s petition; or

                             (ii)  sign an authority under section 188 and inform the chair of the meeting, in writing, of the name of the person in whose favour the authority has been signed;

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s40.html

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More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966? The Act defines Bankruptcy Notices as follows:

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

Mark J. Smith
Mark J. Smith

To learn more about Mark Smith, his training and expertise – click here to go to his profile page

Connect to Mark on LinkedIn.

Follow Mark on Twitter: https://twitter.com/mrmarkjsmith

Transcript

hi mark smith, here welcome back to business asset protection, today we’re having a further look at some other sections. now there are endless acts of bankruptcy maybe not endless but we’re looking at a number of them so we’re looking at today from about section 40(1)(d)-(h) of the bankruptcy act.

so sit back and enjoy. all right so let’s have a look at the section 40(1) of the bankruptcy act. so a debtor commits

as act of bankruptcy in each of the following so we’ve looked at a b c we’re well

we’re now in d and we’re going to look through to h we’ve already had a look at g and we’ll touch

on that briefly when we get there so you commit an act of bankruptcy on every one of these occasions

all right so let’s quickly go to section d

you commit an act of bankruptcy if that the sheriff turns up and tries to sell your stuff and it’s either sold but it hasn’t paid the debt so that’s that’s a section 40(1)(d). there’s a pardon me so there’s been a writ for possession of your goods and they’re either sold or held by the by the sheriff for more than 21 days so this has come back unsatisfied that’s that is the key they come back unsatisfied poor sheriffs this is fairly self-explanatory DAA. if the debtor’s prison well if you present your own debtors petition you are bankrupt that’s that’s an act of well sorry that’s an act of bankruptcy now even if it’s not accepted it is itself an act of bankruptcy d.a if the if the debtor presents a declaration so there is a way you can present this declaration and we can have a look at that in section 54A if you have a meeting of your creditors and it’s decided that even just having a meeting itself would be a well we’ll have a look so this is section 40 in brackets one in brackets e if at a meeting of his or her creditors he or she commits a commits to presented as a petition so if you come out publicly and say well it’s going to happen within seven days even if you don’t well that’s that’s going to be an act of bankruptcy or he or she can sense to sign an authority under section 188 and we’ll have a look at that a little bit later within seven days and if there’s minutes kept and that sort of thing and there’s a meeting chair and it’s all in writing well and you know there’s a vote of your creditors well so be it, that’s an act of bankruptcy. F now we’re not going to have a look at g but we are going to have a look at f if at a meeting of his or her creditors so this these are sort of sounding like you’re talking formally about being insolvent they are themselves an act of bankruptcy so we’ve had a meeting of his or her creditors he or she admits that he or she is in is in insolvent circumstances and having it doesn’t have to be the entire the entirety of your creditors we can have a look more closely at some of this case law or you’ve got any questions give us a call but if if you’ve been in one of these positions where you’ve had a meeting with your creditors or someone’s been in that position with you where they’ve had a meeting of their creditors and you’ve you know said that you will pass a resolution well these are all factors that point very very heavily as acts of of acts of bankruptcy so g. g now we have had a look at this if a creditor obtains a final judgment so we don’t get a judgment against ralph paligaru for $106,551 we serve him and he doesn’t pay he had six months that’s that is an act of bankruptcy there and then there can be some exceptions for instance where a notice was served in australia within a fixed time and the debtor does not does not comply with the requirements so the bankruptcy number said ralph you’ve got to pay $106,551 within 6 months so that’s actually very generous it’s now as it today today’s the 19th of april 2021. the average creditor gets 21 days and after 21 days you have you have committed an act of bankruptcy. so so where the dead or does not comply with the requirements of the notice or satisfy the court that he or she has a counter claim so yes well it’s not only that it’s a counter claim set off or cross demand equal to or exceeding the amount of the judgment debt as the case may be THAT that he or she could not could not could not have set up in the action or proceedings in which the judgment was obtained so they had a counter claim and but they could not they couldn’t set up this counter claim so this is a little bit different and look finally finally we’ll have a look at now h. if he or she gives his or her creditors notice that he’s about to suspend payments of his or her debts so we’ve got this situation with mr paligaru and where he’s he’s given not necessarily every one of his creditors but possibly i can think of i can think of a couple who’s given notice and says well i’m not paying because i’m going bankrupt well there you go yeah you’ve committed an act of bankruptcy just then and there there are a few more of these, and we might have a look at that in a separate video this is obviously a technical space so what i do encourage people to do depending on their circumstances we’ve got health checks we’ve got questionnaires you can chat with us on our chat tools in the bottom right corner here of dcpartners.solutions we’d love you to be in contact with us you’ve got someone that owes you money or you owe them money we can help you on either side the debtors side or the creditor side we can give you advice on these pre-insolvency issues so it’s it’s really important what you say what you well you can see for yourself you attend a meeting and you pass resolutions you tell our creditors various things then we can talk through with you what some of your options are  ,

so we’ll have a look at some of the remaining acts of bankruptcy there are more there are even more and there’s plenty of ways there’s only 50 ways to leave your lover but i don’t know if there’s 50 ways that you can go bankrupt but we’re going to keep looking and thank you very much for joining in. got any questions, chat with us bottom corner here www.dcpartners.solutions use the chat tool or give us a ring 1300-327123 or you can email me mark@dcpartners.solutions. thanks very much bye

Bankruptcy – s40(1)(c) Bankruptcy Act 1966.

bankruptcy

How does a Bankruptcy Notices under the Bankruptcy Act 1966 work?

BANKRUPTCY ACT 1966 – SECT 40(1)(b)

Acts of bankruptcy

(1)  A debtor commits an act of bankruptcy in each of the following cases: ….

                     (c)  if, with intent to defeat or delay his or her creditors:

                              (i)  he or she departs or remains out of Australia;

                             (ii)  he or she departs from his or her dwelling-house or usual place of business;

                            (iii)  he or she otherwise absents himself or herself; or

                            (iv)  he or she begins to keep house;

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s40.html

Need finance?

Need finance for your business – big or small? Even if you need funds for a tax debt or other problem – we may be able to assist – click here for next steps.

More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966? The Act defines Bankruptcy Notices as follows:

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

Mark J. Smith
Mark J. Smith

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Transcript

well, welcome back to business asset protection where today we’re having a look at the bankruptcy act. this is part four of our series today we’re looking at section 40 (1) (C) and different ways that a person might try to defeat or delay his or her creditors so come join us okay well here we are in section 40 (1)(C) and we’re looking at a a debtor commits an act of bankruptcy in each of the following: so they’re all equal okay so if if someone gives you a bankruptcy notice for a hundred billion dollars and you don’t pay it well that that is equal to one act of bankruptcy section 40(1)(C) a debtor commits an act of bankruptcy and each in each of the following cases we’ll see as if with intent to defeat or delay his or her creditors well let’s have a look at this very closely so if , if so that’s the question if if with intent to defeat or delay his or her creditors okay so let’s have a really close look at this that’s section 40(1)(c) if we intend to delay to defeat to defeat which is final or to delay which just means it can only be temporary only has to be slight um his or her creditors in brackets one he or she departs or remains from australia so if you’ve departed um well that may be – that may be an event bankruptcy now it doesn’t it doesn’t automatically follow but there are some instances so you do you depart australia or you remain out of australia and and it comes down to – with intent to delay – or defeat his or her creditors. so again it’s not automatic um two he or she departs from his or her dwelling or usual house OR place of business so we’re gonna maybe actually have a quick look at some of this actual case law and we’ll see what it says. 3 he or she otherwise have since himself or herself so that can be you know from australia it could be from you know bondi if that’s where you um depart and you know you just go missing or number four if he or she begins or begins begins to keep house. again it doesn’t have to be permanent but that in itself just the beginning to keep house can can if with intent to defeat or delay his or her creditors he or she departs or remains out of australia he or she departs from his or her her dwelling house or usual place of business or so he or she departs his or her dwelling OR usual place of business so in other words you do a runner. all right well i’m just going to refer a little bit to this book that i’m reading and i think it’s really it’s quite complex it’s a little bit technical but i think if you’ll allow me to just um refer to this book i think you’ll get a little bit out of it um what is it what does it mean and what happens in these circumstances if one of these four tests is is present? that they departed or remain out of australia? departed from his or her home or usual place of business? as absenting himself or herself? or beginning to keep house that is to remain in one’s house now this is what keeping house means it means to remain in one’s house and refusing entry to others to serve a process so just that in itself could could easily be enough it’s not guaranteed you’ve got the covid virus and you’ve been told to quarantine that that would be a perfect excuse? if you’ve got cold or flu-like symptoms that too might be a reason temporarily so to keep house the onus is on yes so the creditor the person that’s trying to bankrupt um is has the owners to establish that the debtor’s intent is to delay or defeat okay so um it does not necessarily have to be the soul intent if it’s if it’s like a collateral attempt intent that that may well be enough um this can be proved directly through the use of statements so um for instance ralph wants to come back he’s choosing to be way you know these these inferences that you can be that can be drawn um use of statements by the debtor or indirectly or indirectly thanks john. um by inference by pro by proving the existence of circumstances which must necessarily cause delay. and which the detour must be presumed to have foreseen or intended to be to be or intended as a necessary result of what he or she was doing. so we could talk through some examples of this defeating or delaying a creditor need not be the debtor’s sole intent in leaving australia or remaining out of australia. now these these cases were pre-covid. so again there’s probably some argument to say well i’m remaining out of australia because it’s impossible to get back or i’d have to do two weeks quarantine like there may be some this there’s some grey here so um possibly so it need not be the need not be the sole intent as long as it’s an intent it’s not enough to simply show that the letters the debtor’s conduct has caused delay it has to be intent intention of delaying or defeating.
so it’s it’s a bit technical. i if you’re if you’re either one of in one of these two situations you’re the debtor and you’d like you know to talk through some of the options, we’ve got a pre-insolvency um we’ve got a pre-insolvency division / work and we can do this same work for the creditor so we can talk through and give you some advice on pre-insolvency issues um with quite a bit of precision um these things can be can be uh the absence is they can be an ongoing event of uh bankruptcy so uh it need not uh it could have started ten years ago um if if a person’s uh remaining out of australia because they know the moment they step back in the country uh something’s gonna happen well that in itself may be an event so there can be an ongoing or uh there’s a continuation um these are continuing acts of bankruptcy so we’re going to look at some of the other bits um of the act uh gradually throughout the series um there’s a time element um in in many of these so these can be an ongoing act uh and if you want to have a read of something case law i can make contact with me use our chat tools in dc partners dot solutions bottom right hand corner um of your screen uh there’s a chat tool so join us there um yeah so there is some case law uh if you want some you know general advice um now if you’ve got someone that’s in this position where uh you know they’re keeping house uh they are absent from australia uh they’re remaining outside of australia uh all these kinds of issues uh they’ve done a runner from their usual house um they’re not telling you where they are they’re not answering the phone they are answering the phone that they’re not they won’t tell you they want some of these uh actually.
matthew taunton there you go um uh refused to give us uh this is a guy we’re going to um mention and uh he’s he’s uh one of our villains. so you’ll you will find out uh he’s not there yet but uh he’s going onto our blog i promise you i promise you he’s going there so look uh these are some of the cases. um uh the technical as i said uh you want to talk through some of the different details give us a call 1300 327123 um if you’re in one of these positions and uh you need money uh but you know maybe you’ve got a temporary problem well we might still be able to help you 1300-327123 uh we’ve got uh tax debt um type uh facilities um you know if you’ve got a tax problem um and maybe you’re in that position where you’ve got the financial difficulty we we possibly can help you uh on either side of the fence uh the debtor site or the creditor site so give us a call 1-300-327-123 got any questions uh you can chat with us anytime uh www.dcpartners.solutions bottom right hand corner user check tools thanks very much

Bankruptcy – s40(1)(b) Bankruptcy Act 1966.

bankruptcy

How does a Bankruptcy Notices under the Bankruptcy Act 1966 work?

BANKRUPTCY ACT 1966 – SECT 40(1)(b)

Acts of bankruptcy

(1)  A debtor commits an act of bankruptcy in each of the following cases: ….

(b)  if in Australia or elsewhere:

                              (i)  he or she makes a conveyance, transfer, settlement or other disposition of his or her property or of any part of his or her property;

                             (ii)  he or she creates a charge on his or her property or on any part of his or her property;

                            (iii)  he or she makes a payment; or

                            (iv)  he or she incurs an obligation;

                            that would, if he or she became a bankrupt, be void as against the trustee;

Source: http://classic.austlii.edu.au/au/legis/cth/consol_act/ba1966142/s40.html

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More info on Bankruptcy?

What is a Bankruptcy Notices under the Bankruptcy Act 1966? The Act defines Bankruptcy Notices as follows:

Do you have a problem with a Bankruptcy Notices? Have you been served a Bankruptcy Notices? Does someone owe you money and you’d like to issue a Bankruptcy Notices?

Any questions about Bankruptcy Notices? Live chat with us in the bottom right corner or call us on 1300-327123 till late, or alternatively complete the form below and we’ll reply to you promptly.

Watch our video tutorial, live chat with us in the bottom right corner or call us on 1300-327123 till late.

We offer a free first appointment to anyone who is in financial trouble and can assist and advise on any Bankruptcy Notices or a related matter. To book your free appointment – click here.

Mark J. Smith
Mark J. Smith

To learn more about Mark Smith, his training and expertise – click here to go to his profile page

Connect to Mark on LinkedIn.

Follow Mark on Twitter: https://twitter.com/mrmarkjsmith

Transcript

welcome back mark smith here from business asset protection we’re a division of dc partners solutions uh we’re having a look at s40 of the bankruptcy act. and we’re actually into part 3.

so today we’re looking at s40(1)(b) and we’re looking at transactions that are voidable against your future bankruptcy trustee.

okay so here we are in s40 and we’re going to be nice and familiar.

again if you’re looking at these make sure you’re looking at the most recently in force

version of the bankruptcy act 1966.

because it does change all the time. even if you google it you will probably come to the wrong version. so to get to that latest version, go to this series,
you can just click on view series and view the latest. and we’re going to administration proceedings there you go s40. so we’re looking at section today well we’re looking at s40(1)(b). so this is where a debtor commits an act of bankruptcy. in each of the following. so there’s many many many of these and this particular one we’re looking at today s40(1)(b). IF in australia or elsewhere he or she makes a conveyance. now we have a look at the definition of conveyance and i’ve got the definition up there for you to have another look at it’s it’s a way of disposing of or getting rid of makes a conveyance transfer settlement that may have a particular meaning. so we should we should look up a settlement,
uh or other disposition. so that leaves it very open. it’s another way of disposing of his or her property, or of any part. so you just get rid of the juices part. or a small part. or any part of his or her property. so it must be his or hers to begin with. and it’s disposed of um in australia or elsewhere you can be a timbuktu.

you could be on the moon. it wouldn’t matter where it was. so that’s only that’s only part one,

way number one. he or she creates a charge on his or her property. now here we go we looked at this in up. above we said that that wasn’t necessarily to do with security?
but here it’s where he or she creates a charge on his or her property? and we should again, very technical. but what is what does the word charge mean? we should have a look at this and i’ll try and pop that definition up over my shoulder. here so you can have a look. he or she makes a payment.

BROAD. or he or she incurs an obligation. so you go and borrow 100 million dollars when you know there’s no possible way that you could uh service it. so you get you charge on your property. you make a payment. you give away 5 million bucks. and  in circumstances where you can’t pay your other bills. these would be um, sorry so, if in australia they do all these things, that would IF he or she became bankrupt, IF he or she became bankrupt would be void as against the trustees. so this now brings us into s120, s121 and s122. these voidable transactions. so it’s it’s a absolute pandora’s box and just looking further at this word charge, i’ve done some research off-air. and it would appear to me that there’s a very broad interpretation of the word charge. so it basically is going to be mortgage or indebtedness or liability. you could even think of it in terms of hocking. uh you’re going to hock some piece of property uh. it could be big or small. it could be centrepoint tower. you could be you you’ll hock your car um. you create a charge in circumstances that would IF you became bankrupt, be void against your trustee. so it’s something that can be unraveled at at a later point? very broad. very very very broad. so we’re going to have a look at um we haven’t got into voidable transactions. there is, we’re only at at s40(1)(b). so we’ve had a look at clause g. which is bankruptcy notices. uh we’ve had a look at clause (a). if you make a conveyance um for the benefit of your creditors generally. and also these are the ones that would be void uh as against your trustee. so there’s a lot more to go through. and i hope you’re getting the gist of just how broad these powers are? so if you’re in the position where someone has served a bankruptcy notice on you? you think you’re insolvent? you can’t pay your bills? or you’ve got someone else who, you’re a small business? and you’ve got someone that owes you money? and someone’s making payments, incurring obligations, creating charges on their properties, conveying parts of their property, or all of their property? um it’s, it would be really good to talk to you. um give us a call on 1300-327123. uh chat with us at the website, using the tools down in the bottom right hand corner of website. this one, bottom right hand corner uh on our webpage www.dcpartners.solutions – we’ve got an instant message tool .

there you can upload your documents. um as whether you’re, you know you’ve been served a bankruptcy notice? or you’ve got someone who’s indebted to you? and IF you’re looking for someone that’s very very skilled at this debt recovery stuff. so um come and have a talk to us. the first meeting’s obligation free. won’t cost you anything. and we’ll tell you uh very clearly very quickly whether we can or we might be able to help you. we we may not be able to say yes, we definitely can help you but we can give you a clear indication of whether we think we might be able to help you. so happy easter.

today’s the friday the 2nd of april 2021. this is probably going to air on the 3rd April 2021, um but we’re available uh you know very long hours, money never sleeps so they say uh – 1300-327123. or use the instant message chat uh tool uh in the bottom right corner of our screen on www.dcpartners.solutions

so thanks for tuning in uh

next we’re going to get into section 40(1)(c) of the Bankruptcy Act.

many many other exciting ways uh that you can um uh give the strong hint that you might have committed an act of bankruptcy

thanks very much. 1300-327123 or chat with us bottom right corner of our screen … www.dcpartners.solutions

Dear Fred re: Caernarvon Cherry’s gigantic payroll fraud

centrelink

9/1/2021

Below is an extract of a letter written several years ago (perhaps around 2017) by Andrew Gartrell to the Hall family patriach, Fred Hall and no doubt his wife Pam Hall, parents of Bernard Hall of Caernarvon Cherry and Biteriot fame which goes into a series of dubious transactions or activities conducted by Bernard & Fiona Hall and through their company at the time Caernarvon Cherry.

Would you like to tell us confidentially about your experiences with the Hall family, Caernarvon Cherry Pty Ltd or Biteriot Operations Pty Ltd?

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Dear Fred and family,

Firstly I must thankyou Fred for the wonderful times I had in my teens with polocrosse teams that you facilitated and arranged for us. I remember most fondly practise days at Towac Park, carnivals across the length and breadth of the state and your various mentoring and simple wisdoms that you provided us all at that time. I really believe you had a great influence on my early life and my sister and I were very lucky to have become involved with your family at that time. 

Curiously through my 20’s / 30’s and early 40’s I saw little of the family except for Bernard and Tim on occasion through our involvement in the fruit industry and neighbours at Melrose. As neighbours Tim and I never really ‘clicked’ and I always felt he had some point or other to win with me. I still enjoyed catching up with David every now and then and the more things change the more they stay the same and I still regard David as a close friend. 

Around 5 years I ago I became progressively more involved with Bernard and Fiona and their fruit packing business at Caernarvon. Initially I regarded both Bernard and Fiona as close friends and confidents. I enjoyed visiting them and slowly slowly without realising I got drawn into their web of deception. Curiously David warned me one time 3 or 4 years ago “Garbs be careful these 2 (Fiona and Bernard) are just after your ideas and really don’t give a shit about you’’ – I laughed off David’s words but of course in time I was to understand how he was spot on with his judgement.

Today I am living in the Philippines operating a modest fruit brokerage business near Clark in the Philippines. We trade US, South African, Egyptian, and Moroccan, Australian fresh produce (apples, citrus, stonefruits etc) across around 10 Asian countries principally Indonesia, China and Hong Kong.  I have travelled around the world numerous times in this role (the African continent 4 times in the past 12 months for instance). I live in a modest house with a nice young girlfriend and my past life in Australia does at times seem a long time ago but the actions of Bernard and Fiona and perhaps a small degree Tim have cost me well more than a million dollars in unpaid debts, unhonoured contracts, stolen IP and lost assets built upon 30 years of hard work and sacrifice from my side. The core dishonesty of the Bonnyglenn and Caernarvon companies that drove the fraudulent payroll system / Centrelink scams that these companies relied upon to source cheap labour has further unwittingly (perhaps) seen my autistic son Richard given a life sentence of imprisonment in a padded cell house with chipboard windows without a view.

All nonsense you may well say Fred but please read on and see the other side of your golden haired boy Bernard and what along with his crafty alcoholic wife Fiona have done to me ….

  1. In December 2013 I harvested what I believed to be the cherry crop of a lifetime. In a year when cherries were in short supply with solid pricing and I had a big crop exceeding 300,000 kg. There was no rain and the fruit was clean and averaged 26mm with more 28mm than 24mm. It was Caernarvon‘s biggest attempt at large scale cherry packing and it was their also their first foray into large scale ‘trust account’ type cherry marketing. Fiona pitched her packing charges at the higher end of the scale to account for the possible unknown. 

The crop sold for around $1,700,000. Even the pickers were paid around $350,000 which was deducted from the $1,700, 000 gross sales. Andrew ultimately got paid about $150,000 for the crop net of the Caernarvon charges which was probably a bit less than I spent growing that crop. Caernarvon = $1.2m , Pickers = $350 K , Farmer = $150 K

Put simply Caernarvon ended up with over $1,200,000 of my $1,700,000 gross sales in 2013 to cover their packing and marketing inputs. Only later was I able to piece together the gross fraud associated with the packing of my cherry crop in 2013 and I learned that large amounts of fruit had been directed in bulk or plain packaging to a north coast retailer (amongst others) who was operating a chain of roadside fruit outlets and buying truckloads of cherries from the shed. He paid cash and his truck was loaded after midnight. Contained on the Caernarvon pack out summaries the fruit was cleverly recorded as ‘waste’.

It’s also worth noting that the following year in 2014 Caernarvon dramatically reduced their packaging charges however no refund was ever offered to me. 

So from the cherry crop of a lifetime I received less than half of what the pickers received? At the time in January 2014 my life was in a state of flux with the failure of my marriage and Caernarvon was offering many future goodies to me which included a lucrative export services agreement and lease of my farm. I was still blissfully unaware of how the Caernarvon pack outs had been manipulated, nor the extent of cash sales or the simple fact that I had been grossly overcharged in the first packing season as the proverbial guinea pig.

Fiona and Bernard were however waving a lucrative export services agreement and viable lease of my farm under my nose so I somehow shrugged off the disastrous 2013 result and moved on believing that Caernarvon and I were still on the same team. 

  1. I spent 15 years of my life putting together an alliance of cherry growers with 25 new orchard plantings and over 120,000 trees in districts such as Mudgee, Wellington, Cudal etc. it was a holistic package with agronomic support, fruit packing and export sales. I travelled extensively to Asia and put together a panel of quality buyers and further developed a unique cherry juice product for our endless nemesis being cracked rain affected cherries. It was all done on the smell a proverbial rag and my fledgling enterprises went from one small cash flow crisis to the next but the fundamental vision of an alliance of cherry growers packing under one brand to the export market was very sound. Alongside this Bernard and Fiona were strong in the pocket, had a large shed and were keen to pack fruit for a living. Bernard and Fiona had however few cherry grower clients, no access to the export market or knowledge on processing cherries into juice. It seemed obvious to bring the two entities together and so we did. The financial reward for my bringing the farms, export markets and processing knowledge to the table for Caernarvon is contained is attached to this letter entitled in a contract entitled ‘services agreement’

As you can see in the contract Fiona signed off on a 5 year plus package valued at $7500 per month, plus bonuses and travel costs. The contract was valued at perhaps $600,000 over the coming years for which I would provide export sales and was a return for all of my goodwill (cherry growers, export buyers and cherry juice formula). In turn this gave Bernard and Fiona the confidence of supply to go out and buy the large GP cherry grader – so at face value it was a win win for everyone. 

Of course what I was never to know that Fiona had no real intention of honouring our agreement and simply paid me for the first 4 or 5 months until she had all my growers and buyers lists, knowledge of the export market and cherry juice formula.

One day she casually called me around the back of the cottage at Carnarvon as she poured me a wine and said ‘that things are really tough for Bernard and I financially at the moment and I need a payment holiday for a few months’. More fool me because it seems after 2 years of no payments the payment ‘holiday’ has become an ‘extended vacation’ and Fiona and Bernard have simply stolen all of my years’ work without ever paying for it as agreed. I am out of pocket for over $500,000 on this one alone. They had no ideas or IP of their own they just stole my vision and two decades of work without paying for it. They had no plan other than to steal just mine. 

Even when I saw the vast extensions to the Caernarvon homestead and Fiona boasts of $10,000 rugs for the lounge room I really still believed (at first) that they would remember me sometime soon and pay my agreed debt. 

  1. Along with entering the aforementioned ‘services agreement’ with Caernarvon it made sense to also lease Caernarvon my cherry orchard at Nashdale as I was going to set up an office in Asia and concentrate on export sales. My marriage to Angela was at an end and I was keen to move on so a change from farming would work well. A 3 year lease was negotiated at $2500 per month plus a $0.20 per box royalty for each box picked. The orchard was picking between 200 to 300 tonnes of cherries each year so it was quite realistic to expect that I should receive a net income of around $60,000 pa from my orchard (say $5000 per month plus) from the fixed and royalty portion of the harvest combined. 

What I of course did not know that Bernard, Fiona and Tim were very keen to buy my orchard having purchased my old shed the year before. My orchard lay in between Melrose and my former shed and with a vast water supply it would be an ideal addition. They were also well aware that I had a high debt load and if the put enough pressure upon me I would collapse financially affording them the opportunity to buy my farm for a song. 

From the outset the lease to Caernarvon became a nightmare with rent not being paid on time and endless dishonesty in relation to the supposed yields. The orchard had always picked around 200 tonnes of cherries per year but instead of 600 possible tons over the 3 year lease period I believe Fiona reported some 100 tons in total over the 3 years. In October 2015 we were forced to take Caernarvon to the NCAT tribunal just to get our basic rent paid up to date. 

I had mortgage payments on my house and farm of around $8000 per month but went into our agreements with Caernarvon holding a $7500 per month services agreement and a $6000 odd per month orchard lease but with defaults on both my services agreement and orchard lease I was quickly under a huge amount of pressure with my bankers and my bankers dialled up the pressure for me to sell. 

Caernarvon perhaps not surprisingly offered the estate agents a sum of about half what my farm was worth and deliberately let the grass grow a metre deep, no pruning or weed spraying and sabotaged every possible sale of my farm. The estate agent advised me that Tim was even known to pull down the various for sale signs along the road at nights.

Bernard, Fiona and to a lesser degree Tim had created the perfect storm for me. They were not honouring our $13,500 per month agreements / leases / contracts and were sabotaging the sale of my orchard so they could secure a bargain for themselves. 

  1. Just two little stories from earlier in the chronology. In January 2014 when I sold Tim and Bernard my packing shed there had been a problem with the electricity meter at the time of settlement and it was agreed between Tim and I to leave the account in my name until it was sorted. Bonnyglenn filled the rooms to the doors with new season apples and the electricity meters ran night and day under my name cooling their fruit. By August there was over $24,000 owing on my name and all of a sudden Tim really didn’t see that he should have to pay the account ‘because the Woodward Road Coop electricity rate was much lower’ – hard to know what that had to do with things but ultimately I had to write a legal demand to Bonnyglenn for the debt and in the interests of long term goodwill (remember this was very early in our relationship) accept around $8000 less from Tim than I owed to Origin Energy. Bernard said ‘I don’t want to get involved that’s Tim project up there’ so I ‘took it for the team’ and chipped in $8000 for reasons not well understood by me to coolstore Bonnyglenn apples that year. (I trust they sold well for you)
  1. The second more sinister story was the last conversation I had with Bernard in about June 2015. I had left a $30,000 cherry hydro cooling machine at my former shed for the use of Caernarvon and it simply disappeared in late 2014. I rang Bernard regularly about what might have happened to the machine and I think he enjoyed sending me on lots of crazy wild goose chases as to its possible whereabouts over the ensuing months.

I had a buyer for the machine at around $25,000 and was still making bank payments on this uninsured machine that had simply vanished whilst left in Bernard’s and Tims care. In our last conversation Bernard advised ‘I think Pinko (the refrigeration company) has your cooler – lot of bad blood between you guys and I think they took it”. At the time I even thanked Bernard for the lead and planned a clandestine reconnaissance of the Pinkertons property. 

I was taken aback to receive a phone call the very next morning from a Mudgee cherry grower who advised ‘I just got a phone call from Bernard Hall, he has your old hydro cooler in his shed on Canobolas Road , I looked at it a few months ago and I want to buy it. He is asking $10,000 cash’. I rang Bernard immediately and asked for an explanation and he hung up on me being the last conversation we ever had. 

  1. So here I was with my former friends Bernard and Fiona stealing my equipment and dishonouring our service agreements and in possession of my farm whilst defaulting / cheating on my lease. Instead of $13,500 per month in income they promised I found myself chasing Caernarvon even for the fixed $2500 portion of the lease every month. My bank payments fell into arrears and my farm and family home were lost. The farm was valued at around $1,200,000 and was sold for $850,000 (Bernard offered $350,000) and our lovely home valued at $1,100,000 (see attached) was sold for $850,000. After legals, other creditors and penalty rates etc Angela got around $___ from the wash up and I got zero. So I now have no farm, no house and no reward for my years of developing the cherry business. (also less than $___ in super) 

But I guess I still have my kids??

  1. My ex-wife suffered a complete nervous breakdown during this period and attempted suicide with the ambulance called to the house on two occasions. Angela could not live with the pain of losing her house and became grossly depressed. On two occasions she threatened also to take the life of our autistic son Richard also. Family and Community Services took the threats most seriously and placed Richard into an emergency foster care arrangement. 

Bernard and Fiona saw the opportunity to cleverly exploit the situation and provided Angela with a full time job at the packing sheds they operated. With no communication between Angela and I they cleverly convinced her that their defaults on our $13,500 per month agreements were not the cause of the problem or the loss of her house but ‘that your ex-husband Andrew was a bad person’ and ‘look at all the problems he has caused’ etc. Given I had left the marriage and was living in the Philippines with a new partner Angela naturally took little convincing that I was indeed the villain. ….

  1. Here is a reminder Fred of how the payroll / Centrelink ‘scam’ operated by both Bonnyglenn and Caernarvon Company’s works. 

A. As a cost saving measure the Bonnyglenn and Caernarvon companies target pensioners, unemployed and others on various commonwealth benefits to make up a significant proportion of their apple and cherry orchard / packing shed labour force. This gives the companies a financial advantage over their competitors by securing a ready stand by workforce for the packing sheds and the ability to pay below hourly rates on occasion. 

B. New employees are requested by the proprietors to complete numerous tax file declarations with different names, tax file details and address. It was also required that new employees complete one tax file declaration providing their correct name, tax file number and address. 

C. Caernarvon and Bonnyglenn proprietors would then hold the tax file declaration forms back for a period of around 4 weeks and then lodge both the fraudulent and correct tax file declarations on behalf of their employees. 

D. The ATO would take a further 2 months plus to process the submitted tax file declarations and then write back to the proprietors merely advising them to deduct a higher marginal income tax deduction from those declarations that failed the data matching process. At around this time those now exposed ‘phantom’ employees would be asked by the proprietors to submit new bogus tax file declarations and the ‘game’ appears to go on forever. At or about that time the now exposed ‘phantom’ employees disappears and his / her role on the fruit packing line is taken up by another ‘phantom’ employee 

E. By submitting a correct tax file declaration and applying perhaps a day or two per month of salary against this bonafide person an aura of credibility descends into the process and gives a degree of protection to all parties if a snap audit took place or Centrelink notices that the ‘phantom’ was not at home on a particular day. The occasional day here and there of bonafide employment also covers everyone in the event of a mishap or workplace accident

F. In the chaos of fruit harvests employing hundreds of persons blended into a significant itinerant workforce including foreign back packers and various other fraudsters and characters having 50 or 60 ‘phantoms’ each year is quite achievable and will not apparently overly attract attention. Ultimately the ‘phantoms’ still remit a small amount of tax and escape attention in their brief 3 month or so horticultural employment stint. This special payroll / Centrelink scam model would not work so readily in more structured or office / industrial workplaces but out in the fruit orchards it’s just fine and dandy 

G. Your various employees’ details both real and ‘phantom’ are entered into the MYOB log and subsequently each paid by cash cheque and not direct deposit. The name of the real or alternatively ‘phantom’ employee is entered on the cheque butt but the cheque is made payable to cash. This all works swimmingly with the only real moment of truth coming when the Westpac bank ask for ID and endorse same on the back of the cheque before cashing. The Westpac tellers of course have no idea what name has been written on the cheque butt back at your office so the scam continues on without a hitch. Unless someone (like the ATO or Centrelink) audited all the reverse side of the Westpac cash cheque) and then the game would be up for everyone. Ooops 

Fred I have little doubt that the payroll / Centrelink scam operated by Bernard and Fiona associated companies would likely be the largest Centrelink scam ever known. Goodness knows what the fall out for the family would be if the truth was ever tabled. We have many colourful personalities like Claudio Cianfrano, Dee, Inga, Pacita, Jan and Tony etc enjoying your very real assistance and involvement to obtain both a wage and a Centrelink / commonwealth payment. With let’s say 10 – 15 of your ‘phantom personalities’, each defraud with your companies assistance $15,000 plus per year from the Commonwealth, over even the last 5 years would see Australian society out of pocket for perhaps $500,000 to $1,000,000. Of course your companies have all gained a commercial advantage by having access to a cheap and secure workforce so everyone involved are winners. 

Fred do you recall the cold winters night in around 2013 when I went to your house to discuss with you Bernard and Tim the matter of a DA for a road I was building along your boundary? Do you remember how the discussion changed to include operation of the packing shed and family matriarch Pam warning Bernard that their creative employment scam was a recipe for a disaster. Pam is pure and honest with the highest degree of integrity always – but not the next generation whose real god is just money. 

  1. However in writing today my real concern was to better explain firstly how Bernard, Fiona schemes had destroyed me financially rather than discuss how these family companies defrauded the Commonwealth and for you to better consider how these matters have affected my children now and into the future. 

So we come to the matter of the ongoing care and custody of my autistic son Richard. Currently he is in the care of FACS and a few weeks ago a formal hearing was conducted by phone to determine his future and guardianship.

Angela was well prepared for the hearing because she had legal aid including a barrister and lawyer present. (This was all because as a pensioner she only apparently earned less than $1500 per year working for Bernard, Fiona and Tims companies for 3 to 4 days per week and up to 70 hours per week in the cherry season = hourly rate of about $0.50). She filed her material on time and presented logical well prepared affidavits and evidence as to why Richard should become a ‘ward of the state’ and be confined in a secure home with padded walls and chipboard windows ‘for his own good’ 

My position in the custody hearing was that Richard should come to the Philippines and live with me. I struggled attending the proceeding unrepresented and by phone from the Philippines. I could not afford the likely $15,000 plus for legal representation in these matters and I think I looked like a bungling disorganised fool on most occasions.

The wash up of the hearing was that Richard’s custody was given to the state rather than have him live with me in my house. He now lives in a padded cell house with chipboard windows in Remano Drive. The kitchen is in wire cage and the TV inside a glass box. He has no sunlight or children his own age in the house just 2 full time carers who pump him full of sedatives and grind his imagination and aspirations into dust.

Consider how different Richards life may have been if Bernard and Fiona had honoured our agreements and Angela could have kept her house and avoided her nervous breakdown or not had free access to the best solicitors Centrelink can buy. 

  1. The final story in this sad saga should be the poisoning of the cherry crop going back to January 2016. I came back to Australia in December 2015 to attempt to better monitor the harvest (and my subsequent royalty payments). It was impossible to get timely auditable information from Fiona but what I could see was that Caernarvon was getting further and further behind with the harvest. Claudio Cianfrano was the orchard manager (a bankrupt using Caernarvon‘s payroll scam to defeat his trustee and creditors and gain a 2nd Centrelink salary) and he had little idea how to manage an orchard of that magnitude. I took a week away over new year and came back in early January to find a staggering 3000 odd cherry trees unpicked with ripe large cherries most of which were either not damaged or with small inconsequential nose splits. I immediately saw the obvious u pick opportunity and notified Caernarvon by email that we intended to re-enter the property to mitigate our losses. Claudio Cianfrano even went and got my ladders and remarked ‘no idea why Bernard didn’t pick this fruit – I think it all got too much for him’. I arranged 15 tourist coaches and spent $6000 advertising on Sydney radio. I think I had 500 plus people attending the next day and with dry weather ahead it was finally a chance to get something back from the last 3 years of financial malaise and I was feeling encouraged when I left the property at 8.30pm on the Friday evening. 

I arrived at the orchard at 4.30am on Saturday morning with picking buckets and supplies waiting for the Sydney hordes to arrive at my u pick weekend. I think I nearly died to see a large waring sign erected through the night at the entrance to the orchard warning that the fruit was ‘not fit for human consumption’. I could smell the acrid odour of insecticide in the air and noticed wheel tracks in the dewy grass on every 4th or 5th row. In these rows the trees were still dripping wet and in the other rows the trees were dry. A tractor and spray cart sat at the spray fill with a warm crank case and a new container of an off label insecticide on the work bench.

I gained the sickening realisation that someone had between 8.30pm Friday and 4.30am Saturday had sprayed occasional rows of the orchard with an insecticide as a ‘spoiler’ for my u pick salvage operation. My fears were confirmed when at 7.00am Saturday I received an email on my phone from Caernarvon‘s lawyer advising that the orchard had been sprayed overnight as part of a ‘routine best horticultural’ practise. (Funny time for a lawyer to write?)

That day was confusing with endless persons turned away and disappointment at every turn. My girlfriend consumed a lot of cherries that day trying to convince me that much of the fruit might not be sprayed. Later in the day she felt sick and vomited so I took her to the Orange Base Hospital. 

If we needed any further proof as to the lack of character of Bernard and Fiona they both ignored our texts from the hospital enquiring as to what insecticide had been sprayed on the trees that fateful evening to assist Catherine. Some weeks later Catherine was to have a miscarriage. The EPA subsequently confirmed the trees were sprayed with Carbryl. 

So let’s consider where things have ended up shall we Fred

For reasons not clear to me Bernard and Fiona (and to a small degree Tim) have cheated me out of many hundreds of thousands. Further neither Bernard nor Fiona are overly bright so they have simply stolen my ideas and put the ‘BITERIOT’ badge on them. In withholding my monies and cheating on agreements they have caused me to lose my assets that I spent my life working for. They were quality and unique properties that I lost with their assistance and were part of my DNA and heritage. (6th generation farmer) 

Bernard, Fiona have for years operated a payroll / Centrelink ‘scam’ in cooperation and conjunction with their employees that would likely have seen the citizens of Australia defrauded by an amount of money easily exceeding $500,000. 

A combination of their cheating and dishonesty has caused Angela’s nervous breakdown and with the further assistance of their companies payroll scam allowed her to access legal aid in the matter of my autistic sons custody. Through a fairly easy to follow chain of events that your family engineered Richard is now imprisoned for the rest of his life in a group home with padded walls and chipboard windows. 

I have to seek written permission to see my son now and he will never do the fun stuff (like polocrosse) that I enjoyed. Bernard and Fiona children however will grow up on a farm, ride ponies and enjoy the better things that their parent’s ill gained affluence has given them. When those kids are in their 20’s at Uni Richard will still be locked up in a padded cell. 

So Fred it’s over to you. I have asked my old pal David to deliver this email to you in person and ask him to read it with you. Since we were kids you always painted David as the black sheep and villain of the family but David’s heart is much purer than you know. I have also asked him to send it to all the other Hall siblings (Shauna, Josie and Fi) whom I wish the very best and thank them for all those wonderful things in our teens we shared back then. You Fred are the wise old man and my past mentor so what should I do know? Forgive and forget? Or throw these 3 enterprising crooks under the proverbial bus and end this Biteriot nonsense forever? 

 Over to you

Andrew Gartrell 

Would you like to tell us confidentially about your experiences?

For more information – chat with us live using our instant chat tools (bottom corners), book an appointment or call now on 1300-327123 (till late).

Andrew Saunders – profile, sanctions and legal opportunity

Andrew Saunders

Andrew Saunders claims to be qualified as a valuer and town planner.

It is not believed that Andrew has any qualifications in law.

Andrew Saunders
Andrew Saunders – an extract from his web profile.

Sanctions

In 2017, Andrew Gartrell of Orange lodged a complaint about the professional conduct of Andrew Saunders. The complaint had a number of aspects and concerned town planning advisory work carried out for the subdivision of Sunnyside, a small acreage on the outskirts of Orange and subsequent valuation works.

A copy of the complaint report can be viewed here: click here to view complaint.

The complaint was concerned by the Australian Property Institute with Andrew Saunders given the opportunity to defend himself, his conduct and otherwise.

A panel considered the complaint/s. The chair of the complaints committee was an accomplished Sydney Lawyer with expertise in the relevant fields: Chris Shaw – click here to view his profile.

A copy of the sanctions report may be viewed here – click image below or this link:

Sanction findings

The API disciplinary panel, amongst other things found:

A full copy of the sanctions report is available here – click link.

Appeal against Sanctions

The writer notes the following advice from the API that Andrew Saunders did not appeal the sanctions:

Qualifications in law?

It is noted in the sanctions report that Andrew Saunders effectively admitted he provided what amounts to legal advice to Andrew Gartrell. Andrew Saunders, it is believed, only has qualifications as a valuer and town planner (and not in law).

Below is an extract of the sanctions report containing the admission:

Advice on existing use rights is typically legal advice.

Legal opportunity

One of our related companies has bought legal proceedings against Saunders & Staniforth in the NSW District Court, alleging professional negligence.

Another associated party – Busifund – Legal Services Capital Trust – is accepting investments with an opportunity to share in the fruits of litigation against Saunders & Staniforth. The fund, Busifund – Legal Services Capital Trust presently (as at December 2020) has an information memorandum in the market and is accepting investments from sophisticated and wholesale investors only (e.g. superfunds and others complying with the definition of sophisticated and wholesale investors).

If you believe that you qualify as a sophisticated investors or wholesale clients and you’d like to consider an investment in the trust, a copy of the BUSiFUND Legal Services Capital Trust Information Memorandum – click here or click the instant messenger chat in the bottom right corner.

For a copy of the BUSiFUND Legal Services Capital Trust Information Memorandum – click here

For more information – chat with us live using our instant chat tools (bottom corners), book an appointment or call now on 1300-327123 (till late).

To contact us with any tip-offs, files or information about any person mentioned on this page – please use the instant chat tools – bottom right corner or the contact/tipoff form below:

ATO kills McGrath franchisee overnight … 

We’ve been researching the circumstances of a number of once successful real estate businesses which have recently gone into receivership, administration or closed.

One business, a McGrath franchisee with dozens of off the plan sales, a large rent roll and the backing of head office (seemingly), was killed by the ATO.

Another business, Castlecrag Realty Pty Ltd (receivers and managers appointed), trading as Stone Castlecrag is presently in receivership.  It is understood the owner was experiencing personal difficulties.

Our research, which we’d like to share with agents in competition, indicates some or all of each of these situations might have been avoided by more thoughtful structuring and asset protection arrangements.

The McGrath business was wound up, more or less overnight, by the ATO.

The Castlecrag business is seemingly in very real financial distress.

Business Asset Protection, applying the research these cases (and others) have uncovered, is offering free business structuring health checks for estate agencies – particularly in the current slow and falling market where finance is difficult to obtain, overheads are fixed and the present election cycles may be causing distress.

To arrange a free structuring health check call now on 1300-327123 or complete the below form.