Claiming
Bankruptcy Act 1988 (as amended)
Debts provable in bankruptcy and arrangements.
(cf. 1857, ss. 247, 249, 252 to 258; 1872, ss. 45-47)
75.—(1) Debts and liabilities, present or future, certain or contingent, by reason of any obligation incurred by the bankrupt or arranging debtor before the date of adjudication or order for protection and claims in the nature of unliquidated damages for which the bankrupt or arranging debtor is liable at that date by reason of a wrong within the meaning of the Civil Liability Act, 1961, shall be provable in the bankruptcy or arrangement.
F57[(2) Where interest or any pecuniary consideration in lieu of interest is reserved or agreed for on a debt which is overdue at the date of adjudication or order for protection, the creditor shall be entitled to prove or to be admitted as a creditor for such interest or consideration up to the date of adjudication or order for protection.]
(3) Where all necessary parties agree, an order for assessment of damages or contribution under section 61 (2) of the Civil Liability Act, 1961, may be made by the Court, notwithstanding that it may not be the court by or before which the claim for damages or contribution falls to be determined.
(4) An estimate may be made by the Court of the value of any debt which, by reason of it being subject to any contingency or for any other reason, does not bear a certain value and the amount of the estimate shall be proved as a debt.
Annotations:
Amendments:
F57
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 30(f), commenced on enactment.
Proof of debts.
(cf. 1857, s. 246 in pt.)
76.—The provisions of the First Schedule shall apply in relation to the proof of debts.
Bankruptcy of mercantile agent.
(New)
77.—Section 12 (2) of the Factors Act, 1889 (which regulates the rights of an owner of goods in the case of the bankruptcy of a mercantile agent to whom they have been entrusted) shall have effect with the substitution for the reference to a trustee in bankruptcy of a reference to the Official Assignee.
Proof for costs of judgment.
(1857, s. 261)
78.—Where a party to any cause or matter has obtained a judgment or order against a person who is afterwards adjudicated bankrupt or is granted an order for protection for any debt for which he proves or is admitted a creditor, he shall also be entitled to prove or be admitted a creditor for the costs of the judgment or order, whether or not the costs have been taxed or ascertained at the date of the adjudication or order for protection.
Disallowance of debts already proved.
(1857, s. 263)
79.—The Court may, on the application of the Official Assignee or any creditor or the bankrupt or arranging debtor, disallow, in whole or in part, any debt already proved or admitted.
Distribution of Estate
Priority of expenses, etc.
(New)
80.—The expenses, fees and costs of the bankruptcy shall be payable in priority to the liabilities of the bankrupt in such order as may be prescribed.
Preferential payments.
(1889, ss. 4,6; 33/1963, s. 285)
81.—(1) In the distribution of the property of a bankrupt there shall be paid in priority to all other debts—
(a) all local rates due from the bankrupt at the date of the order of adjudication, and having become due and payable within twelve months next before that date, and all property or income tax assessed on the bankrupt up to the F58[31st December] next before the date of the order of adjudication, and not exceeding in the whole one year’s assessment;
(b) all wages or salary (whether or not earned wholly or in part by way of commission) of any clerk or servant in respect of services rendered to the bankrupt during the four months next before the date of the order of adjudication not exceeding £2,500;
(c) all wages not exceeding £2,500 of any labourer or workman (whether payable for time or for piece work) in respect of services rendered to the bankrupt during the four months next before the date of the order of adjudication: provided that, where any farm labourer has entered into a contract for the payment of a portion of his wages in a lump sum at the end of the year or other shorter term of hiring, the priority under this section shall extend to the whole of such sum, or a part thereof, as the Court may decide to be due under the contract proportionate to the time of service up to the date of the order of adjudication;
(d) all accrued holiday remuneration becoming payable to any clerk, servant, workman or labourer (or in the case of his death to any other person in his right) on the termination of his employment before or by the effect of the adjudication order;
(e) all sums due to any employee pursuant to any scheme or arrangement for the provision of payments to the employee while he is absent from employment owing to ill health;
(f) any payments due by the bankrupt pursuant to any scheme or arrangement for the provision of superannuation benefits to or in respect of employees of the bankrupt whether such payments are due in respect of the bankrupt’s contribution to that scheme or under that arrangement or in respect of such contributions payable by the employees to the bankrupt under any such scheme or arrangement which have been deducted from the wages or salaries of employees;
(g) any debt, payment or contribution which by virtue of any provision in any enactment in operation before the commencement of this Act was included in the debts to which section 4 of the Preferential Payments in Bankruptcy (Ireland) Act, 1889, gave priority; and any reference to the said section 4 in any such enactment shall be construed as a reference to this subsection.
(2) The foregoing debts shall rank equally between themselves and be paid in full unless the property of the bankrupt is insufficient to meet them, in which case they shall abate in equal proportions between themselves.
(3) Subject to the retention of such sums as may be necessary for the costs and expenses of administration or otherwise, the foregoing debts shall be discharged forthwith so far as the property of the bankrupt is sufficient to meet them.
(4) In the event of a landlord or other person distraining or having distrained on any goods or effects of the bankrupt within three months next before the date of the order of adjudication, the debts to which priority is given by this section shall be a first charge on the goods or effects so distrained on, or the proceeds of sale thereof; provided that in respect of any money paid under any such charge the landlord or other person shall have the same rights of priority as the person to whom the payment is made.
(5) Any remuneration in respect of a period of holiday or absence from work through good cause shall be deemed to be wages in respect of services rendered to the bankrupt during that period.
(6) Notwithstanding section 4, this section shall not apply where the order of adjudication was made before the commencement of this Act, and in such a case, the provisions relating to preferential payments which would have applied if this Act had not been passed shall be deemed to remain in full force.
(7) Subsections (1), (2), (3), (5) and (6) shall apply in the case of an arranging debtor under the provisions of this Act as if he were a bankrupt, and as if the date of the filing of the petition for arrangement were substituted for the date of the order of adjudication.
(8) Any creditor who, in the case of an arrangement, votes in respect of any debt to which priority is given by this section for or against the acceptance of the debtor’s proposal or any modification thereof or, in the case of a composition after bankruptcy, votes in respect of any such debt for or against the acceptance of the bankrupt’s offer of composition or any modification thereof shall by so voting be deemed to have abandoned any rights under subsection (1) and shall be remitted to such rights (if any) in respect of any of the debts therein mentioned as such creditor would have had apart from that subsection.
(9) This section shall apply in the case of a deceased person who dies insolvent as if he were a bankrupt and as if the date of his death were substituted for the date of the order of adjudication.
(10) Nothing in this section shall alter the effect of section 3 of the Partnership Act, 1890, or shall prejudice the provisions of section 14 of the Trustee Savings Banks Act, 1863, or the provisions of the Friendly Societies Act, 1896.
Annotations:
Amendments:
F58
Substituted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 156, S.I. No. 462 of 2013.
Modifications (not altering text):
C21
Application of section extended (15.07.2014) by Protected Disclosures Act 2014 (14/2014), s. 12 and sch. 2 para. 5(2), S.I. No. 327 of 2014.
SCHEDULE 2
Redress for Contravention of section 12(1)
Provisions relating to winding up and bankruptcy.
5. …
(2) There shall be included among the debts which, under section 81 of the Bankruptcy Act 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable by virtue of a decision under paragraph 1(2)(b) or a determination under paragraph 2(1)(b) by the bankrupt or arranging debtor to an employee, and that Act shall have effect accordingly.
C22
Application of section extended (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 41 and sch. 5 para. 5(2), S.I. No. 287 of 2013.
SCHEDULE 5
Redress for Contravention of section 41(1)
Provisions relating to winding-up and bankruptcy
5. …
(2) There shall be included among the debts which, under section 81 of the Bankruptcy Act 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable by virtue of a decision under paragraph 1(2)(b) or a determination under paragraph 2(1)(b) by the bankrupt or arranging debtor, to an employee, and that Act shall have effect accordingly. Formal proof of the debts to which priority is given under this subparagraph shall not be required except in cases where it may otherwise be provided under that Act.
C23
Application of section extended (31.07.2013) by Personal Insolvency Act 2012 (44/2012), ss. 67(1), (4) and 101(1), (5) S.I. No. 285 of 2013.
Preferential debts in Debt Settlement Arrangement.
67.— (1) Unless the creditor concerned otherwise agrees in writing and provision is so made in the terms of the Debt Settlement Arrangement, a preferential debt shall, subject to subsection (3), be paid in priority by the debtor and where those debts are to be paid in priority the provisions of section 81 of the Bankruptcy Act 1988 shall apply with all necessary modifications.
…
(4) In this Chapter, “preferential debt” means a debt which, if the debtor concerned were a bankrupt would be a debt—
(a) that by virtue of section 81 of the Bankruptcy Act 1988 is to be paid in priority to all other debts, or
(b) that by virtue of any other statutory provision is to be included among such debts.
…
Preferential debts in Personal Insolvency Arrangement.
101.— (1) Unless the creditor concerned otherwise agrees in writing and provision is so made in the terms of the Personal Insolvency Arrangement, a preferential debt shall, subject to subsection (3), be paid in priority by the debtor and where those debts are to be paid in priority the provisions of section 81 of the Bankruptcy Act 1988 shall apply with all necessary modifications.
…
(5) In this Chapter, “preferential debt” means a debt which, if the debtor concerned were a bankrupt would be a debt
(a) that by virtue of section 81 of the Bankruptcy Act 1988 is to be paid in priority to all other debts, or
(b) that by virtue of any other statutory provision is to be included among such debts.
C24
Application of section extended by Industrial Relations Act 1946 (26/1946), s. 45D, as inserted (1.08.2012) by Industrial Relations (Amendment) Act 2012 (32/2012), s. 13, S.I. No. 302 of 2012.
Provisions relating to winding up and bankruptcy.
45D. …
(3) There shall be included among the debts which, under section 81 of the Bankruptcy Act 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable by virtue of a decision under section 45A(2)(b) or a determination under section 45B(1)(b) by the bankrupt or arranging debtor, as the case may be, to a worker, and the Bankruptcy Act 1988 shall have effect accordingly.
(4) Formal proof of the debts to which priority is given under subsection (3) shall not be required except in cases where it may otherwise be provided under the Bankruptcy Act 1988.
C25
Application of section extended (6.07.2012) by Property Services (Regulation) Act 2011 (40/2011), s. 67(5), (6) and sch. 4 para. 3(10), S.I. No. 411 of 2011.
SCHEDULE 4
Redress for Contravention of section 67(5)
Paragraphs 1 and 2: supplemental provisions
3. …
(10) There shall be included among the debts which, under section 81 of the Bankruptcy Act 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable by virtue of a decision under paragraph 1(2)(b) or a determination under paragraph 2(1) by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly. Formal proof of the debts to which priority is given under this subparagraph shall not be required except in cases where it may otherwise be provided under that Act.
C26
Application of section extended (16.05.2012) by Protection of Employees (Temporary Agency Work) Act 2012 (13/2012), s. 25 and sch. 2 para. 5(2), commenced on enactment.
SCHEDULE 2
Redress for certain contraventions of Act
Provisions relating to winding up and bankruptcy.
5. …
(2) There shall be included among the debts which, under section 81 of the Bankruptcy Act 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable by virtue of a decision under paragraph 1(2) or a determination under paragraph 2(1) by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subparagraph shall not be required except in cases where it may otherwise be provided under that Act.
C27
Application of section extended (9.08.2011) by Criminal Justice Act 2011 (22/2011), s. 20 and sch. 2 para. 5(3) and (4), S.I. No. 411 of 2011.
SCHEDULE 2
Redress for Contravention of section 20(1)
Provisions relating to winding up and bankruptcy
5. …
(3) There shall be included among the debts which, under section 81 of the Bankruptcy Act 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable by virtue of a decision under paragraph 1(2)(b) or a determination under paragraph 2(1)(b) by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly.
(4) Formal proof of the debts to which priority is given under subparagraph (3) shall not be required except in cases where it may otherwise be provided under the Bankruptcy Act 1988.
C28
Application of section extended (21.12.2009) by National Asset Management Agency Act 2009 (34/2009), s. 223(3), (4) and sch. 2 para. 5(2), S.I. No. 545 of 2009.
SCHEDULE 2
Redress for Contravention of section 223(3)
Provisions relating to winding up and bankruptcy
5. …
(2) There shall be included among the debts which, under section 81 of the Bankruptcy Act 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable by virtue of a decision under paragraph 1(2)(b) or a determination under paragraph 2(1) by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly. Formal proof of the debts to which priority is given under this subparagraph shall not be required except in cases where it may otherwise be provided under that Act.
C29
Application of section extended (1.01.2007) by Employment Permits Act 2006 (16/2006), s. 26(3), (4) and sch. 2 para. 5(2), S.I. No. 682 of 2006.
SCHEDULE 2
Redress for Contravention of section 26(3)
Provisions relating to winding up and bankruptcy.
5. …
(2) There shall be included among the debts which, under section 81 of the Bankruptcy Act 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable by virtue of a decision under paragraph 1(2)(b) or a determination under paragraph 2(1) by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subparagraph shall not be required except in cases where it may otherwise be provided under that Act.
C30
Application of section extended (1.12.2005) by Social Welfare Consolidation Act 2005 (26/2005), s. 19(5), S.I. No. 923 of 2005.
Winding-up and bankruptcy.
19.—(1) In this section “Act of 1988” means the Bankruptcy Act 1988.
…
(5) There shall be included among the debts which under section 81 of the Act of 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all employment contributions payable by the bankrupt or arranging debtor during the 12 months before the date of the order of adjudication in the case of a bankrupt or the filing of the petition for arrangement in the case of an arranging debtor, and that Act has effect accordingly, and formal proof of the debts to which priority is given under this subsection is not required except in cases where it may otherwise be provided by general orders made under that Act.
C31
Application of section extended by Protection of Employees (Employers’ Insolvency) Act 1984 (21/1984), s. 10(2A), as inserted (6.04.2004) by Industrial Relations (Miscellaneous Provisions) Act 2004 (4/2004), s. 15, S.I. No. 138 of 2004.
Transfer to Minister of certain rights and remedies
10.— …
[(2A) Where the Minister makes a payment to an employee under section 6(2)(a)(iii)(II) (inserted by section 15 of the Redundancy Payments Act 2003) of this Act, that payment shall be recoverable by the Minister as a debt to be paid in priority to all other debts under—
(a) section 81 of the Bankruptcy Act 1988, or
(b) section 285 (as amended by section 10 of the Companies (Amendment) Act 1982 and section 134 of the Companies Act 1990) of the Companies Act 1963,
and any amount of that payment which would, but for the limit set by section 6(4)(a) (as may be varied by regulations under section 11(5)), be payable to an employee, shall be treated for all purposes as if it were a payment required to be paid by virtue of an award under section 12(1) of the Act of 1973.]
…
C32
Application of section extended (2.07.2001) by Carer’s Leave Act 2001 (19/2001), s. 25(2), commenced on enactment.
Winding up and bankruptcy.
25.— …
(2) There shall be included among the debts that, under section 81 of the Bankruptcy Act, 1988, are in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, any compensation payable under this Act by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall not be required except in cases where it may otherwise be provided by rules of court.
C33
Application of section extended (21.12.2000) by National Training Fund Act 2000 (41/2000), s. 5(11), (12), S.I. No. 494 of 2000.
Collection of levy.
5.—…
(11) There shall be included among the debts which, under section 81 of the Bankruptcy Act, 1988, are, in the distribution of the property of a bankrupt to be paid, subject to section 119 of that Act, in priority to all other debts, all levy payable pursuant to section 3 by the bankrupt during the period 12 months before the date of the order of adjudication, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall comply with the provisions of the First Schedule to that Act and any rules of court relating to proof of debt.
…
C34
Application of section extended (1.04.2000) by National Minimum Wage Act 2000 (5/2000), s. 49(2), (3), S.I. No. 96 of 2000.
Provisions relating to winding-up and bankruptcy.
49.— …
(2) There shall be included amoung the debts which, under section 81 of the Bankruptcy Act, 1988, are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all arrears of pay payable under this Act by the bankrupt or arranging debtor.
(3) Formal proof of the debts to which priority is given under subsection (1) or (2) shall not be required except in cases where it may otherwise be provided by rules or general orders made under the respective Act.
C35
Application of section extended (18.10.1999) by Employment Equality Act 1998 (21/1998), s. 103(2), S.I. No. 320 of 1999.
Provisions relating to insolvency.
103.— …
(2) There shall be included among the debts which, under section 81 of the Bankruptcy Act, 1988, are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all relevant compensation payable under this Part by the bankrupt or arranging debtor, as the case may be, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall not be required except in cases where it may otherwise be provided by general orders made under that Act.
C36
Application of section extended (3.12.1998) by Parental Leave Act 1998 (30/1998), s. 24(2), commenced as per s. 1(2).
Winding up and bankruptcy.
24.— …
(2) There shall be included among the debts that, under section 81 of the Bankruptcy Act, 1988, are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, any compensation payable under this Act by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall not be required except in cases where it may otherwise be provided by rules of court.
C37
Application of section extended (6.04.1997) by Taxes Consolidation Act 1997 (39/1997), ss. 982 and 994, commenced as per s. 1097.
Preferential payment.
982.—The priority attaching to assessed taxes under section 81 of the Bankruptcy Act, 1988, and sections 98 and 285 of the Companies Act, 1963, shall apply to capital gains tax.
…
Priority in bankruptcy, etc. of certain amounts.
994.—(1) In this section, “employer’s liability for the period of 12 months” means all sums which an employer was liable under this Chapter and any regulations under this Chapter to deduct from emoluments to which this Chapter applies paid by the employer during the period of 12 months mentioned in subsection (2), reduced by any amounts which the employer was liable under this Chapter and any regulations under this Chapter to repay during the same period, and subject to the addition of interest payable under section 991.
(2) There shall be included among the debts which under section 81 of the Bankruptcy Act, 1988, are to be paid in priority to all other debts in the distribution of the property of a bankrupt, arranging debtor or person dying insolvent so much as is unpaid of the employer’s liability for the period of 12 months before the date on which the order of adjudication of the bankrupt was made, the petition of arrangement of the debtor was filed or, as the case may be, the person died insolvent.
C38
Application of section extended (20.03.1995) by Adoptive Leave Act 1995 (2/1995), s. 38(2), S.I. No. 64 of 1995.
Provisions relating to winding up and bankruptcy.
38.— …
(2) There shall be included among the debts which, under section 81 of the Bankruptcy Act, 1988, are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable under this Part by the bankrupt or arranging debtor, as the case may be, to an adopting parent, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall not be required except in cases where it may otherwise be provided by general orders made under that Act.
C39
Application of section extended (30.01.1995) by Maternity Protection Act 1994 (34/1994), s. 36(2), S.I. No. 16 of 1995.
Provisions relating to winding up and bankruptcy.
36.— …
(2) There shall be included among the debts which, under section 81 of the Bankruptcy Act, 1988, are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable under this Part by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall not be required except in cases where it may otherwise be provided by general orders made under that Act.
C40
Application of section extended (25.03.1994) by Industrial Training (Apprenticeship Levy) Act 1994 (3/1994), s. 12(3), S.I. No. 61 of 1994.
Provisions relating to winding up and bankruptcy, etc.
12.— …
(3) (a) There shall be included among the debts which, under section 81 of the Bankruptcy Act, 1988, are, in the distribution of the property of a bankrupt to be paid, subject to section 119 of that Act, in priority to all other debts, all levy payable pursuant to section 2 by the bankrupt during the period of 12 months before the date of the order of adjudication, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall comply with the provisions of the First Schedule to that Act and any rules of court relating to proof of debt.
(b) Paragraph (a) of this subsection shall be construed so as to apply to an arranging debtor in the same manner as it applies to a bankrupt and, accordingly, the reference in that paragraph to the period of 12 months before the date of the order of adjudication shall be construed as a reference to the period of 12 months before the date of the presenting of the petition for protection.
C41
Application of section extended (29.08.1989) by European Communities (Preferential Treatment For Debts in Respect of Levies on Production of Coal and Steel) Regulations 1989 (S.I. No. 219 of 1989), reg. 3(1).
3.(1)(a) There shall be included among the debts which, under section 81 (1) of the Bankruptcy Act, 1988, are to be paid in priority to all other debts in the distribution of the property of a bankrupt—
(i) any debts arising from the application of the levies referred to in Articles 49 and 50 of the ECSC Treaty which shall have fallen due within the period of twelve months next before the date of the order of adjudication of the bankrupt was made, and
(ii) any surcharges, in respect of delay in paying those levies, referred to in Article 3 of the Commission Recommendation.
(b) Subparagraph (a) of this paragraph shall, for the purposes of section 81 of the Bankruptcy Act, 1988, be deemed to be contained in subsection (1) of that section and, in particular, subsections (7) and (9) of that section shall be construed accordingly.
Editorial Notes:
E20
Priority attaching to taxes to which section applies prescribed by Taxes Consolidation Act 1997 (25/1997), s. 960P, as inserted (24.12.2008) by Finance (No. 2) Act 2008 (25/2008), s. 97 and sch. 4 para. 1(b), commenced on enactment; amended (1.11.2010) by Value-Added Tax Consolidation Act 2010 (31/2010), ss. 123 and sch. 7, commenced as per s. 125; and (1.01.2012) by Finance Act 2011 (6/2011), s. 20(1)(n), S.I. No. 660 of 2011; and (1.01.2013) by Finance (Local Property Tax) Act 2012 (52/2012), s. 158 and schedule item 7, S.I. No. 589 of 2012.
E21
Section confirmed to apply to the recovery of interest payable on overdue income tax and corporation tax as if the interest were a part of the tax (6.04.1997) by Taxes Consolidation Act 1997 (39/1997), s. 1080(3), (4), commenced as per s. 1097, as substituted (25.03.2005) by Finance Act 2005 (5/2005), s. 145, commenced on enactment.
FIRST SCHEDULE
Proof of Debts
Section 76.
General
(New)
1. Every creditor shall prove his debt and a creditor who does not do so is not entitled to share in any distribution that may be made.
2. (a) A creditor may prove his debt by delivering or sending by post to the Official Assignee particulars of his debt (in this Schedule referred to as a “proof of debt”).
(b) Subparagraph (a) is without prejudice to the entitlement of a creditor to prove his debt at a sitting of the Court.
3. The Official Assignee may fix a time within which proofs of debt shall be sent to him. A proof submitted thereafter shall not be allowed except by order of the Court.
4. Proof of debt may be furnished by way of a detailed statement of account, an affidavit of debt or other prescribed means.
5. The creditor shall specify the vouchers or any other evidence by which the debt can be substantiated. He shall also give particulars of any counterclaim that, to his knowledge, the bankrupt or arranging debtor may have, and he shall indicate whether or not he is a secured creditor.
6. Proof of debt in respect of money lent by a moneylender shall have annexed thereto the particulars required by section 16 (2) of the Moneylenders Act, 1933.
7. An affidavit shall be required in any case where the debt is disputed or the Court or the Official Assignee thinks fit.
(1857, s. 246)
8. Proof of debt may be given by the oath or affidavit of the creditor himself or by the oath or affidavit of some person authorised by or on behalf of the creditor and, if made by a person so authorised, shall state his authority and means of knowledge.
9. Subject to paragraph 24 (5), a creditor may, with the consent of the Official Assignee, amend his proof of debt.
10. Every creditor who has lodged a proof of debt is entitled to see and examine the proofs of other creditors.
F97[11. A person may prove a debt against his or her spouse as if they were not married.]
(New)
12. A sole trustee (including a personal representative) who is a bankrupt or an arranging debtor shall be entitled, without leave of the Court, to prove in his own bankruptcy or arrangement in respect of a debt due from him to the trust estate. Any dividend in respect of such a debt shall be paid to the Accountant of the High Court for credit of the trust estate.
(1872, s. 48)
13. If any bankrupt or arranging debtor, at the date of the adjudication or order for protection, is liable in respect of distinct contracts, as a member of two or more distinct firms, or as a sole contractor, and also as member of a firm, the circumstance that such firms are, in whole or in part, composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of such contracts against the properties respectively liable upon such contracts.
(cf. 1857, s. 260)
14. On any debt or sum certain, payable at a certain time or otherwise, whereon interest is not reserved or agreed for, and which is overdue at the date of the adjudication, the creditor may prove for interest at the rate currently payable on judgment debts to that date from the time when the debt or sum was payable, if the debt or sum is payable by virtue of a written instrument at a certain time, and if payable otherwise, then from the time when a demand in writing has been made, giving notice that interest will be claimed from the date of the demand until the time of payment.
(cf. 1857, s. 252)
15. In respect of debts due after the adjudication or order for protection, the liability for which existed at the date of such adjudication or order for protection, a creditor may prove for the value of the debt at that date.