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CAN I APPEAL

CAN I APPEAL?

REVIEW AND APPEAL OF TRUSTEE AND ADMINISTRATOR DECISIONS

Reproduced by express permission form the Australian Financial Security Authority (AFSA) .

January 2004 Edition

About Bankruptcy Regulations

Bankruptcy Regulation is an independent branch of AFSA which reports directly to the Inspector-General in Bankruptcy.

It is responsible under the Bankruptcy Act for monitoring the standards of trustees and debt agreement administrators.

Its role includes, on behalf of the Inspector-General in Bankruptcy, dealing with requests for review of certain decisions made by trustees and dealing with complaints against trustees and administrators.

If Bankruptcy Regulation is unable by law to help, it will advise you of your options, such as making an application to the Court.

See the Prescribed Information booklet for definitions of bankruptcy terms

AFSA (Australian Financial Security Authority) is a Commonwealth government agency. AFSA is the trustee when a registered trustee is not appointed.

Review procedures

Trustees

Trustees may make decisions which affect the rights of people whose estates are being administered under the Bankruptcy Act, their creditors and other people.

If you have a query or concern about a trustee decision you should first contact them directly to seek resolution. If you do not resolve the matter you may be able to use the review process within the Act.

You may ask for a review of certain decisions:

  • in the first instance to your local Bankruptcy Regulation office (see rear cover)
  • at a later stage, if required, to the Administrative Appeals Tribunal.

Other decisions may be reviewed by an application to the Court.

Debt agreement administrators

If you are a debtor, a creditor or someone who is party to a specific Debt Agreement and you have a query or concern about the conduct of an administrator you should first contact them directly to seek resolution. If you do not resolve the matter you may refer it to Bankruptcy Regulation.

More information is available in the pamphlet:

Resolving Complaints about Trustees and Administrators

Decisions which can be reviewed

Bankruptcy Regulation may review the following decisions made by a trustee:

  • filing of a notice of objection to discharge
  • issuing an income contribution assessment
  • rejecting a hardship application with respect to an income contribution assessment
  • rejecting an application for early discharge (applies only to bankruptcies occurring prior to 5 May 2003.

Bankruptcy Regulation must also review such a decision if requested by the Ombudsman.

You have a 60 day time limit from the date the trustee informs you of their decision in which to loge a request for review.

You cannot apply to the Administrative Appeals Tribunal for review unless:

  • a prior review request has been made to Bankruptcy Regulation
  • the review request has been assessed.

Bankruptcy Regulation does not have the authority to review any other decision made by a trustee, such as:

  • selling an asset (eg house, property, stock, plant and equipment, motor vehicle etc)
  • admitting/rejecting a proof of debt.

If you are unable to resolve the matter with the trustee, and the decision cannot be reviewed by Bankruptcy Regulation, your only remedy may be to apply to the Court.

For example, a creditor or bankrupt may apply to the Court for a review of a decision by a trustee to admit or reject a proof of debt. The application to the Court must be made within 21 days form the date of the decision.

What documentation do I need?

Your request to Bankruptcy Regulation for a review must be:

  • in writing and lodged with Bankruptcy Regulation, and
  • accompanied by:
  1. a copy of the document showing the trustee’s decision
  2. an explanation of why you consider the decision should be reviewed
  3. any documents to support your request.

Time period of review

Bankruptcy Regulation must decide within 60 days after you lodge a request for review whether to review the decision and, if so, make a decision on the review.

What does it cost?

There is no charge for a review undertaken by Bankruptcy Regulation.

How is my request handled?

Your request for a review will be acknowledged in writing within 7 days of receipt.

Bankruptcy Regulation will contact the trustee to find out if further documents are available to assist the review process.

You may need to provide further documents to enable the process to proceed.

If the investigation of your review is not finalized within 28 days, you will be informed of the progress of the investigation.

Where Bankruptcy Regulation has not made a decision within 60 days, it is taken to have reviewed the trustee’s decision and confirmed it.

If your review request is not upheld, Bankruptcy Regulation will advise you of your further rights of appeal.

Decision in writing

Bankruptcy Regulation will provide you and the trustee with a written decision.

Review of Trustee’s Fees

A creditor or bankrupt dissatisfied with a registered trustee’s claim for fees and costs may request the Official Receiver for a review. This is called a ‘taxing of costs’. The request must be made within 28 days of you becoming aware of the amount of the claim. Generally the person who requests that the claim be taxed will bear the costs of taxation which is charged at an hourly rate. If taxation results in a reduction of at least 15% in the amount of a claim, the trustee must bear the costs of the taxation.

AFSA’s trustee fees imposed in a bankruptcy may be waived or remitted by application to the Inspector-General in Bankruptcy. The grounds for remission of waiver are that:

  • payment of the fee will cause undue hardship to the person liable to pay the fee; or
  • there are exceptional circumstances in which it is proper and reasonable to do so.

Applications, in writing, may be sent to Bankruptcy Regulation (see rear cover) or any AFSA office. A decision will be made usually within 28 days of an application.

What else can Bankruptcy Regulation help with?

If you have a complaint relating to the actions of a trustee, debt agreement administrator or a controlling trustee, you should follow the procedure set out in the pamphlet: Resolving Complaints about Trustees and Administrators

Further information about what you can expect from Bankruptcy Regulation and AFSA generally is available in the Client Service Charter

Where to contact us

AFSA website www.afsa.gov.au 

1300 364 785

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