PART 7 | PROCEEDINGS IN BANKRUPTCY |
| Division 1 — Statutory demand |
| Form and contents of statutory demand |
64.—(1) A statutory demand —| (a) | must be in Form PIR-2; | | (b) | must state the actual amount of the debt that has accrued as at the date of the statutory demand; | | (c) | if the amount claimed in the statutory demand includes interest, penalties, charges or any pecuniary consideration in lieu of interest, must separately identify the actual amount that has accrued as at the date of the statutory demand and the rate at which and the period for which it was calculated; | | (d) | must state the consideration for the debt or, if there is no consideration, the way in which the debt arises and —| (i) | if the debt is founded on a judgment or an order of a court — details of the judgment or order, including the action under which the judgment or order was obtained and the date of the judgment or order; and | | (ii) | if the debt is founded on grounds other than a judgment or an order of a court — such details as would enable the debtor to identify the debt; |
| | (e) | if the creditor making the statutory demand holds any property of the debtor or any security for the debt, must specify —| (i) | the full amount of the debt; and | | (ii) | the nature and value of the property or the security; and |
| | (f) | must be dated and signed by the creditor making the statutory demand or a person authorised to make the statutory demand on the creditor’s behalf. |
| (2) If the creditor making the statutory demand holds any property of the debtor or any security for the debt, the amount of the debt of which payment is claimed is the full amount of the debt less the amount specified in the statutory demand as the value of the property or security. |
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| Information to be given in statutory demand |
65.—(1) A statutory demand must include an explanation to the debtor of the following matters:| (a) | the purpose of the demand, and the fact that if the debtor does not comply with the demand, bankruptcy proceedings may be commenced against the debtor; | | (b) | the time within which the demand must be complied with if that consequence is to be avoided; | | (c) | the methods of compliance available to the debtor; | | (d) | the debtor’s right to apply to the Court to set aside the statutory demand. |
(2) In addition to the information mentioned in paragraph (1), the statutory demand must specify —| (a) | one or more named individuals with whom the debtor may, if the debtor wishes, enter into communication for purposes of securing or compounding for the debt to the satisfaction of the creditor; and | | (b) | the address and telephone number (if any) of any individual so named in the demand. |
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| (3) The debtor is not under any obligation to make inquiries in respect of the statutory demand except for the purposes given in paragraph (2). |
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| Requirements as to service of statutory demand |
66.—(1) A creditor making a statutory demand must —| (a) | take all reasonable steps to bring the statutory demand to the debtor’s attention; and | | (b) | make reasonable attempts to effect personal service of the statutory demand. |
| (2) Where a creditor is not able to effect personal service of a statutory demand, the statutory demand may be served by such other means as would be most effective in bringing the statutory demand to the notice of the debtor. |
(3) Substituted service under paragraph (2) may be effected by any of the following modes:| (a) | by posting the statutory demand at the door or some other conspicuous part of the last known place of residence or business of the debtor; | | (b) | by forwarding the statutory demand to the debtor by prepaid registered post to the last known place of residence, business or employment of the debtor; | | (c) | where the creditor is unable to effect substituted service in accordance with sub‑paragraph (a) or (b) by reason that the creditor has no knowledge of the last known place of residence, business or employment of the debtor, by advertisement of the statutory demand in one or more local newspapers, in which case the time limited for compliance with the demand starts to run after the date of the publication of the advertisement; | | (d) | such other mode which the Court would have ordered in an application for substituted service of an originating summons in the circumstances. |
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(4) Where a statutory demand is to be served out of jurisdiction, the period to be stipulated in the statutory demand for compliance and setting aside of the demand must not be less than the following period after the date on which the demand is served or deemed in accordance with these Rules to be served on the debtor:| (a) | in a case where the debtor is served or deemed to be served with a statutory demand during the prescribed period under the COVID‑19 (Temporary Measures) Act 2020 (Act 14 of 2020) — 6 months; | | (b) | in any other case — 21 days. |
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(5) A creditor must not resort to substituted service of a statutory demand on a debtor unless —| (a) | the creditor has taken all such steps which would suffice to justify the Court making an order for substituted service of a bankruptcy application; and | | (b) | the mode of substituted service would have been such that the Court would have ordered in the circumstances. |
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(6) Where a statutory demand is made against a firm, personal service of the statutory demand is deemed to have been effected on all the partners in the firm if it is served at the principal place of business of the firm in Singapore on —| (a) | any one of the partners; or | | (b) | any person having (at the time of service) control or management of the business of the firm in Singapore. |
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| (7) If the creditor is unable to serve the statutory demand on the firm as required under paragraph (6), the creditor may resort to substituted service in accordance with paragraphs (2) to (5) as if the statutory demand is against each of the partners in the firm. |
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| Application to set aside statutory demand |
67.—(1) A debtor who has been served with a statutory demand may apply by way of originating summons to the Court within the applicable period set out in paragraph (2) for an order setting aside the statutory demand. (2) The applicable period for the purposes of paragraph (1) is the following period after the date on which the statutory demand is served or deemed in accordance with these Rules to be served on the debtor: | (a) | in a case where the debtor was served or deemed to be served with a statutory demand during the prescribed period under the COVID‑19 (Temporary Measures) Act 2020 — 6 months; | | (b) | in any other case —| (i) | 14 days; or | | (ii) | where the demand was served outside jurisdiction — 21 days. |
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| (3) Despite paragraphs (1) and (2), the Court may, upon the application of the debtor, allow the debtor an extension of time to make the debtor’s application to set aside the statutory demand. |
| (4) Unless the Court otherwise orders, the time limited for a debtor to comply with the statutory demand served on the debtor ceases to run as from the date on which the debtor files in Court an application under paragraph (1). |
(5) The affidavit supporting an application under paragraph (1) must —| (a) | specify the date on which the statutory demand came into the debtor’s hands; | | (b) | state the grounds on which the statutory demand should be set aside; and | | (c) | exhibit a copy of the statutory demand. |
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| (6) Every application under paragraph (1) and the affidavit supporting the application must be filed at the same time and must be served on the creditor in question within 3 days after the date of filing. |
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| Hearing of application to set aside statutory demand |
68.—(1) On the hearing of an application under rule 67, the Court may either summarily determine the application or adjourn it, and may give such directions as it thinks appropriate.(2) The Court must set aside a statutory demand if —| (a) | the debtor in question appears to the Court to have a valid counterclaim, set-off or cross demand which is equivalent to or exceeds the amount of the debt or debts specified in the statutory demand; | | (b) | the debt is disputed on grounds which appear to the Court to be substantial; | | (c) | it appears to the Court that the creditor in question holds property of the debtor or security in respect of the debt claimed by the demand and —| (i) | rule 64(1)(e) has not been complied with; or | | (ii) | the Court is satisfied that the value of the property or security is equivalent to or exceeds the full amount of the debt; |
| | (d) | rule 64 has not been complied with and the failure to comply has caused or will cause substantial injustice to the debtor which cannot be remedied by any order of the Court; or | | (e) | the Court is satisfied, on any other ground, that the demand ought to be set aside. |
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| Division 2 — Creditor’s bankruptcy application |
| Form of creditor’s bankruptcy application |
69.—(1) Every creditor’s bankruptcy application must be in Form PIR‑3.(2) For the purposes of a creditor’s bankruptcy application and all proceedings under the application —| (a) | the plaintiff is the creditor making the bankruptcy application; and | | (b) | the defendant is the debtor against whom the bankruptcy application is made. |
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70.—(1) The affidavit supporting a creditor’s bankruptcy application must state the following particulars of the debtor:| (a) | the debtor’s name; | | (b) | the number of the debtor’s identity card or passport; | | (c) | the debtor’s place of residence; | | (d) | the debtor’s occupation (if any); | | (e) | any name other than the one specified under sub‑paragraph (a) which, to the creditor’s personal knowledge, the debtor has used. |
(2) Where a creditor’s bankruptcy application is filed against a firm, the affidavit supporting the application must state the following particulars:| (a) | the name of the firm; | | (b) | the number of the certificate of the registration of the firm under the Business Names Registration Act 2014; | | (c) | the place of business of the firm; | | (d) | the particulars as specified in paragraph (1) of each of the partners in the firm. |
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| (3) The full title of the proceedings is determined by the particulars of the debtor specified in paragraph (1)(a), (b) and (e). |
| (4) Where the creditor’s bankruptcy application is filed against a firm, the full title of the proceedings is determined by the name of the firm as well as the particulars specified in paragraph (1)(a), (b) and (e) of all the partners in the firm. |
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71.—(1) The affidavit supporting a creditor’s bankruptcy application must state the following matters in respect of the debt:| (a) | the actual amount of the debt that has accrued as of the date of the application; | | (b) | if the amount claimed in the application includes any interest, penalty, charge or any pecuniary consideration in lieu of interest —| (i) | the amount claimed for the interest, penalty, charge or other pecuniary consideration (separately identified); | | (ii) | the rate at which and the period for which the interest, penalty, charge or other pecuniary consideration (as the case may be) was calculated; and | | (iii) | the grounds on which the interest, penalty, charge or other pecuniary consideration (as the case may be) is claimed; |
| | (c) | when the debt was incurred and when it became due; | | (d) | the consideration for the debt or, if there is no consideration, the way in which the debt arises and —| (i) | if the debt is founded on a judgment or an order of a court — details of the judgment or order, including the action under which the judgment or order was obtained and the date of the judgment or order; or | | (ii) | if the debt is founded on grounds other than a judgment or an order of a court — such details as would enable the debtor to identify the debt. |
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(2) If the creditor holds any property of the debtor or any security for the debt, the creditor must —| (a) | account for such property or security in the affidavit and, in particular, provide the following information:| (i) | a description of the property or security held; | | (ii) | the value of property or security as at the date of the creditor’s bankruptcy application; and |
| | (b) | take into account such property or security in the amount claimed in the creditor’s bankruptcy application. |
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| Creditor’s statement in affidavit |
| 72. A creditor making a bankruptcy application must state in the affidavit supporting the application whether section 36(2) of the Act applies to the creditor, and if so, how that provision applies. |
| Bankruptcy application based on statutory demand |
73.—(1) Where a creditor’s bankruptcy application is based on non-compliance with a statutory demand, the affidavit supporting the application must state the following:| (a) | the date and manner of service of the statutory demand; | | (b) | that to the best of the creditor’s knowledge and belief, the statutory demand has neither been complied with nor set aside; | | (c) | that to the best of the creditor’s knowledge and belief, no application to set the statutory demand aside is pending. |
(2) No creditor’s bankruptcy application based on non-compliance with a statutory demand may be made —| (a) | in a case where the statutory demand was served or deemed served in accordance with these Rules during the prescribed period under the COVID‑19 (Temporary Measures) Act 2020 — if more than 9 months have elapsed since the date on which the demand was served or deemed served; or | | (b) | in any other case — if more than 4 months have elapsed since the date on which the statutory demand was served or deemed served in accordance with these Rules. |
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| Bankruptcy application based on section 312(b) of Act |
74.—(1) Where a creditor’s bankruptcy application is based on section 312(b) of the Act, the affidavit supporting the application must give details of the following matters:| (a) | the judgment or order from which the judgment debt arises; | | (b) | the court which issued the execution against the debtor; | | (c) | the mode of execution; | | (d) | the extent (if any) to which the judgment debt has been satisfied as a result of the execution. |
| (2) No application based on section 312(b) of the Act may be made if more than 4 months have elapsed since the date on which the execution in question was completed. |
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| Grounds of creditor’s bankruptcy application |
75. In addition to the other matters which are required by these Rules to be stated in the affidavit supporting a creditor’s bankruptcy application, the creditor must —| (a) | explain in the affidavit how the conditions and grounds specified in sections 310 and 311, respectively, of the Act for the making of a bankruptcy application have been satisfied; and | | (b) | where the bankruptcy application is made in reliance of section 314 of the Act, explain in the affidavit how the condition in section 314(a) of the Act is satisfied. |
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| Deposit payable to Official Assignee, etc. |
76.—(1) A creditor making a bankruptcy application must file the application and the affidavit supporting the application in court together with a receipt from the Official Assignee showing payment of the deposit mentioned in regulation 8(1)(a) of the Bankruptcy Regulations. | (2) A creditor must, within 3 days after filing the creditor’s bankruptcy application, serve a copy each of the application and the supporting affidavit on the Official Assignee. |
| (3) Where a creditor’s bankruptcy application has been filed under paragraph (1), the Official Assignee may, from time to time, require the applicant creditor to deposit with the Official Assignee any further sums required by the Official Assignee (whether before or after the making of the bankruptcy order) to cover the fees and expenses incurred by the Official Assignee in connection with the application. |
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77. The affidavit supporting a creditor’s bankruptcy application must be —| (a) | in Form PIR-4 or Form PIR-5, whichever is appropriate for the application; | | (b) | filed at the same time as the creditor’s bankruptcy application; and | | (c) | made by the applicant creditor or another person on the applicant creditor’s behalf. |
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| Proof of service of statutory demand |
78.—(1) Where a creditor’s bankruptcy application is based on non‑compliance with a statutory demand, an affidavit proving service of the statutory demand (called in this rule an affidavit of service of a statutory demand) must be filed in support of the application.(2) An affidavit of service of a statutory demand must —| (a) | state the mode, date and time of the service; and | | (b) | exhibit a copy of the statutory demand and any acknowledgment of service of the statutory demand. |
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(3) Where a statutory demand has been served other than by personal service, the affidavit of service of the statutory demand must —| (a) | give particulars of the steps taken to effect personal service and the reasons for which the steps have been ineffective; | | (b) | where attempts at personal service have been unsuccessful, state the means by which the demand was sought to have been brought to the debtor’s attention; | | (c) | where sub-paragraph (b) applies, explain why the means mentioned in that sub‑paragraph would have best ensured that the demand would be brought to the debtor’s attention; | | (d) | exhibit evidence of such alternative mode or modes of service; and | | (e) | specify a date by which to the best of the knowledge, information and belief of the person making the affidavit, the demand would have come to the debtor’s attention. |
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| (4) The steps (of which particulars are given as required under paragraph (3)(a)) must be such as would have sufficed to justify an order for substituted service of a bankruptcy application being made by the Court. |
| (5) If an affidavit of service of a statutory demand specifies a date as required under paragraph (3)(e), then unless the Court otherwise orders, that date is deemed for the purposes of these Rules and the Bankruptcy Regulations to have been the date on which the statutory demand was served on the debtor. |
| (6) The Court must dismiss the creditor’s bankruptcy application if the Court is not satisfied that the creditor has discharged the obligations imposed on the creditor by rule 66. |
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Division 3 — Steps to be taken before hearing of creditor’s bankruptcy application |
| Personal service on individual debtor |
79.—(1) Subject to rule 81, a creditor’s bankruptcy application and the affidavit supporting the application must be served together and personally on the debtor by —| (a) | an officer of the Court; | | (b) | the applicant creditor or a person in the employment of the applicant creditor; or | | (c) | the applicant creditor’s solicitor or a person in the employment of the solicitor. |
| (2) The personal service of a creditor’s bankruptcy application and the affidavit supporting the application on a debtor is effected by delivering a sealed copy of the application together with its supporting affidavit to the debtor. |
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80. Subject to rule 81, where a creditor’s bankruptcy application is against a firm, personal service of the application is deemed to have been effected on all the partners in the firm if the application and the affidavit supporting the application are served together at the principal place of business of the firm in Singapore on —| (a) | any one of the partners; or | | (b) | any person having (at the time of service) control or management of the business of the firm in Singapore. |
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81.—(1) The Court may order substituted service of a creditor’s bankruptcy application on a debtor if the Court is satisfied by affidavit or other evidence on oath that prompt personal service cannot be effected —| (a) | because the debtor is keeping out of the way to avoid service of the creditor’s bankruptcy application; or | | (b) | for any other cause. |
| (2) If the debtor in question is not in Singapore, the Court may order service to be made within such time and in such manner and form as the Court thinks fit. |
| (3) Where an order for substituted service has been carried out, the bankruptcy application is deemed to have been duly served on the debtor in question. |
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| 82. If a creditor’s bankruptcy application is filed against a debtor because the debtor has failed to comply with any of the debtor’s obligations under a voluntary arrangement under Part 14 of the Act, and the applicant is not the nominee who was acting in relation to the voluntary arrangement, the applicant must serve a copy of the application and its supporting affidavit on the nominee. |
| Giving of notice to proposed trustee |
83.—(1) A creditor making a bankruptcy application against a debtor must give notice in writing of the application, together with a copy each of the application and the affidavit supporting the application, to —| (a) | the person to be appointed as the trustee of the estate of the debtor in the event a bankruptcy order is made on the application; and | | (b) | if the debtor is a bankrupt, each person appointed as the trustee of the estate of the debtor under each subsisting bankruptcy order made against the debtor. |
| (2) In paragraph (1)(b), a bankruptcy order made against a debtor is a subsisting bankruptcy order if the order has not been annulled and the debtor has not obtained a discharge in respect of the order. |
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| Death of debtor before service |
| 84. If a debtor dies before service on the debtor of a creditor’s bankruptcy application, the Court may order service to be effected on the debtor’s personal representatives or any other person or persons that the Court thinks fit. |
| Proof of service of bankruptcy application |
85.—(1) Service of a creditor’s bankruptcy application must be proved by affidavit.(2) The affidavit must exhibit —| (a) | a sealed copy of the bankruptcy application and the affidavit supporting the application with an endorsement on the sealed copy as to the date and time of the service; and | | (b) | if substituted service has been ordered, a sealed copy of the order for substituted service and any evidence of the service. |
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| Affidavit of non-satisfaction of debt |
86. A creditor making a bankruptcy application must file an affidavit not earlier than 3 days before the date of the hearing of the application, stating —| (a) | the amount that remains unsatisfied; and | | (b) | that the amount mentioned in paragraph (a) has neither been paid nor secured or compounded for, |
| if the amount alleged to be owing to the creditor as at the date that the affidavit is filed remains wholly or partly unsatisfied. |
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| Division 4 — Hearing of creditor’s bankruptcy application |
| Date of hearing of creditor’s bankruptcy application |
87.—(1) Subject to paragraph (2), a creditor’s bankruptcy application must not be heard until the expiration of 7 clear days, or such longer time as the Court may direct, after the service of the application.(2) The Court may, on such terms as it thinks fit, hear the creditor’s bankruptcy application at an earlier date where —| (a) | the Court is satisfied that the debtor has absconded; | | (b) | the Court is satisfied that it is a proper case for an expedited hearing; or | | (c) | the debtor consents to a hearing being held before the expiry of the 7 clear days mentioned in paragraph (1). |
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88.—(1) Any one or more of the following persons may be heard in the hearing of a creditor’s bankruptcy application:| (a) | the creditor making the bankruptcy application; | | (b) | the debtor in question; | | (c) | where there has been a voluntary arrangement under Part 14 of the Act, the nominee who was acting in relation to the voluntary arrangement; | | (d) | subject to paragraph (3), any creditor of the debtor in question who has given notice to the Court of the creditor’s intention to appear at the hearing of the bankruptcy application; | | (e) | the Official Assignee. |
(2) The notice of a creditor under paragraph (1)(d) must —| (a) | be in Form PIR-6; | | (b) | specify —| (i) | the name, address and telephone number of the creditor giving the notice; | | (ii) | whether the creditor’s intention is to support or oppose the bankruptcy application; and | | (iii) | the amount and nature of the creditor’s debt; and |
| | (c) | be filed at least one day before the hearing. |
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| (3) A creditor who fails to comply with paragraph (2) may not appear at the hearing except with the leave of the Court. |
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| Where there are several debtors |
89. Where service has not been effected upon all the debtors against whom a creditor’s bankruptcy application has been made, the bankruptcy application —| (a) | may be heard separately or collectively as regards any debtors who have been served; and | | (b) | may subsequently be heard separately or collectively as regards any other debtors after service has been effected upon them. |
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| Bankruptcy application by licensed moneylender |
90.—(1) In addition to the other requirements in these Rules, a licensed moneylender licensed under the Moneylenders Act (Cap. 188) making a bankruptcy application against a debtor based on a debt arising from one or more loans granted by the licensed moneylender as a licensed moneylender must prove the debt by an affidavit —| (a) | incorporating a statement setting out in detail the particulars set out in paragraph (2) in respect of each loan; and | | (b) | exhibiting a copy of the note of contract (duly signed as required under section 20(1)(a) of the Moneylenders Act) for each loan. |
(2) The particulars for the purposes of paragraph (1)(a) are as follows:| (a) | the date on which the loan was made; | | (b) | the amount actually lent under the contract for the loan; | | (c) | the rate per cent per annum of interest charged; | | (d) | the date when the contract for repayment was made; | | (e) | the fact that a note of the contract was made and was signed by the debtor; | | (f) | the date when a copy of the note was delivered or sent to the debtor; | | (g) | the amount repaid; | | (h) | the amount due but unpaid; | | (i) | the date upon which such unpaid sum or sums became due; | | (j) | the amount of interest accrued due and unpaid on every such sum; | | (k) | the form in which the money was lent. |
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| (3) A reference in paragraph (1) to a licensed moneylender making a bankruptcy application is a reference to a person who, at the time each loan mentioned in paragraph (1)(b) is granted, is a licensed moneylender, whether or not the person continues to be so licensed at the time that the bankruptcy application is made by the person. |
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| Bankruptcy application opposed by debtor |
91. Where a debtor intends to oppose a creditor’s bankruptcy application filed against the debtor, the debtor must do the following not later than 3 days before the hearing of the bankruptcy application:| (a) | file in court a notice specifying the grounds upon which the debtor will object to the making of a bankruptcy order; | | (b) | serve a copy of the notice on the applicant creditor and the Official Assignee. |
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| Non-appearance of applicant creditor or lack of prosecution of bankruptcy application |
92.—(1) If the creditor making a bankruptcy application fails to appear on the hearing of the bankruptcy application or fails to prosecute the application diligently —| (a) | the application may be dismissed; and | | (b) | no subsequent application against the same debtor (either alone or jointly with any other person) may be made by the same creditor in respect of the same debt without the leave of the Court. |
| (2) Without limiting paragraph (1), where the bankruptcy application has been dismissed without a hearing by reason of the failure of the applicant creditor to attend the hearing, the application must not be restored to the list. |
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| Deemed discontinuance of creditor’s bankruptcy application |
93.—(1) If it appears from the records maintained by the Court that no party to a creditor’s bankruptcy application has taken any step or proceeding in the bankruptcy application for a period of more than one year (or the period as extended by the Court under paragraph (3)) since the last step or proceeding that was taken in that bankruptcy application, the bankruptcy application is deemed to have been discontinued on the expiration of the period of one year (or the period as extended by the Court under paragraph (3)) after the taking of that last step or proceeding.| (2) Paragraph (1) does not apply where the creditor’s bankruptcy application has been stayed pursuant to an order of the Court. |
| (3) The Court may, on an application by any party made before the end of the period of one year mentioned in paragraph (1), extend the time for taking any step or proceeding to the extent that the Court thinks fit. |
| (4) Where a creditor’s bankruptcy application has been discontinued under this rule, the Court may, on application, reinstate the bankruptcy application, and allow it to proceed on such terms as the Court thinks just. |
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| Postponement of hearing of bankruptcy application where it has not been served |
94.—(1) A creditor making a bankruptcy application may apply to the Court for extension of time for the hearing of the bankruptcy application if the application has not been served.| (2) The application for extension of time under paragraph (1) must state the reasons why the bankruptcy application has not been served. |
| (3) The costs (if any) of an application for extension of time under paragraph (1) are not to be borne by the debtor against whom the bankruptcy application is made. |
| (4) If an extension of time is granted by the Court, the bankruptcy application must be amended before service to reflect the new hearing date. |
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| Adjournment of hearing of bankruptcy application for other reasons |
95.—(1) At the hearing of a bankruptcy application, where —| (a) | a creditor’s bankruptcy application has been duly served; and | | (b) | a period of one month has expired after the day appointed for the first hearing of a creditor’s bankruptcy application, |
| then, unless the Court adjourns the hearing, the Court is to either make a bankruptcy order on the application or dismiss the application. |
(2) No adjournment of the hearing is to be made after the period mentioned in paragraph (1) has expired except on any of the following grounds:| (a) | the debtor appears to show cause against the bankruptcy application or dispute any matter relevant to the bankruptcy proceedings; | | (b) | where the debtor appears and satisfies the Court that the debtor is able to pay the debtor’s debt in full or in part within a reasonable period; | | (c) | the Court is satisfied that there are sufficient reasons for granting the adjournment. |
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| (3) If the Court adjourns the hearing of the creditor’s bankruptcy application, the applicant creditor must immediately send a notice of the adjournment in Form PIR‑7 to the debtor, unless the debtor was present during the hearing or the Court otherwise directs. |
| (4) The costs of any adjournment of the hearing of the bankruptcy application are not to be borne by the debtor if the adjournment was necessitated by any act or omission of the applicant creditor. |
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| Substitution of applicant creditor |
96.—(1) This rule applies where a creditor who has made a bankruptcy application (A) —| (a) | fails to appear in support of the bankruptcy application on the day fixed for the hearing of the bankruptcy application; | | (b) | appears on the day fixed for the hearing of the bankruptcy application but does not apply for an order in terms of the relief sought in the bankruptcy application; or | | (c) | does not diligently prosecute the bankruptcy application. |
(2) The Court may, on such terms as it thinks just, order that A be substituted by any other creditor (B) if B —| (a) | has given notice of B’s intention to appear and support the bankruptcy application under rule 88 and so appears; | | (b) | is desirous of prosecuting the bankruptcy application; and | | (c) | was in such a position in relation to the debtor at the date on which the bankruptcy application was filed as would have enabled B on that date to file a bankruptcy application against the debtor. |
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| (3) An order of the Court under paragraph (2) is to be in Form PIR‑8. |
| (4) Where the Court has ordered the substitution of A under paragraph (2), A is not entitled to the costs of the bankruptcy proceedings unless the Court otherwise orders. |
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| Bankruptcy application to be amended, etc. |
97.—(1) Where the Court orders a substitution of an applicant creditor under rule 96, the new applicant creditor must —| (a) | amend the creditor’s bankruptcy application accordingly; | | (b) | re-file in court the amended creditor’s bankruptcy application and the new applicant creditor’s affidavit supporting the application together with a receipt from the Official Assignee showing payment of the deposit mentioned in regulation 8(1)(a) of the Bankruptcy Regulations; | | (c) | re-serve the amended creditor’s bankruptcy application and the new applicant creditor’s affidavit supporting the application in accordance with the provisions of these Rules relating to a creditor’s bankruptcy application and the service, proof of service, and giving of notice, of such an application; and | | (d) | within 3 days after filing the amended creditor’s bankruptcy application, serve a copy each of the amended creditor’s bankruptcy application and the new applicant creditor’s affidavit supporting the application on the Official Assignee. |
| (2) Where an amended creditor’s bankruptcy application has been filed under paragraph (1), the Official Assignee may, from time to time, require the new applicant creditor to deposit with the Official Assignee any further sums required by the Official Assignee (whether before or after the making of the bankruptcy order) to cover the fees and expenses incurred by the Official Assignee in connection with the bankruptcy application. |
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| Decision on hearing of bankruptcy application |
| 98. On the hearing of a creditor’s bankruptcy application, the Court may make a bankruptcy order if it is satisfied that the statements in the affidavit supporting the application are true, and the debt on which the bankruptcy application has been founded has not been paid, secured or compounded for. |
| Dismissal of bankruptcy application |
99. The Court must dismiss a creditor’s bankruptcy application where —| (a) | the applicant creditor is not entitled to make the bankruptcy application by virtue of section 310, 311 or 312 of the Act; or | | (b) | in a case where the application is based on a statutory demand —| (i) | the applicant creditor has not discharged the obligations imposed on the applicant creditor by rule 66; or | | (ii) | the statutory demand is such that the Court would have set it aside had the debtor made an application under rule 67. |
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| Division 5 — Debtor’s bankruptcy application |
| Form of debtor’s bankruptcy application |
100.—(1) A debtor’s bankruptcy application must be made in Form PIR‑9, and the affidavit supporting the application must state —| (a) | the debtor’s name as it appears in the debtor’s identity card or passport; | | (b) | the number of the debtor’s identity card or passport, as the case may be; | | (c) | any other name or names by which the debtor is or was known or by which the debtor carries or has carried on any business; | | (d) | the debtor’s residential address, and electronic mail address (if any); | | (e) | the debtor’s occupation and monthly income; and | | (f) | whether the debtor carries on any business and if so, the nature of the debtor’s business, the address at which the debtor carries on the business, and whether the debtor carries on the business alone or with others. |
(2) Where a debtor’s bankruptcy application is made by a firm in the firm’s name, the affidavit supporting the application must state —| (a) | the name, the number of the identity card or passport, the residential address, electronic mail address (if any), the occupation and the monthly income, of each of the partners in the firm; | | (b) | whether all the partners concur in the filing of the application; | | (c) | the name of each partner who does not concur in the filing of the application (if any); | | (d) | the nature of the business of the firm; | | (e) | the number of the certificate of confirmation of the registration of the firm under the Business Names Registration Act 2014; and | | (f) | where any of the partners in the firm carries on any business separately, the nature of the business, the address at which the business is carried on, and whether the partner carries on the business alone or with others. |
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| (3) Where the bankruptcy application is made by an individual debtor, the full title of the proceedings is determined by the particulars of the debtor specified in paragraph (1)(a), (b) and (c). |
| (4) Where the bankruptcy application is made by a firm in the firm’s name, the full title of the proceedings must include the name of the firm as well as the names and numbers of the identity cards or passports of all the partners in the firm. |
| (5) The debtor must explain in the debtor’s affidavit how the conditions and grounds specified in sections 310 and 311, respectively, of the Act for the making of a bankruptcy application have been satisfied. |
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101.—(1) The affidavit supporting a debtor’s bankruptcy application must be in Form PIR‑10, and must contain —| (a) | the statement that the debtor is unable to pay the debtor’s debts; and | | (b) | an explanation as to the cause of the debtor’s insolvency. |
| (2) If, at any time prior to the bankruptcy application, the debtor had been adjudged bankrupt, or has made a composition with the debtor’s creditors in satisfaction of the debtor’s debts or a scheme of arrangement of the debtor’s affairs, or has entered into any voluntary arrangement, particulars of these matters must be given in the affidavit mentioned in paragraph (1). |
| (3) If, at the date of making the application, there is in force a voluntary arrangement under Part 14 of the Act, the particulars required under paragraph (2) must contain a statement to this effect and the name and address of the nominee acting in relation to the voluntary arrangement. |
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102.—(1) A debtor’s bankruptcy application must be filed in court together with a statement of affairs in Form PIR‑11.| (2) The statement of affairs mentioned in paragraph (1) must be verified by an affidavit in Form PIR‑12. |
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| Procedure for filing debtor’s bankruptcy application |
103.—(1) A debtor making the debtor’s own bankruptcy application must file the application, the affidavit supporting the application and the debtor’s statement of affairs in Court together with a receipt from the Official Assignee showing payment of the deposit mentioned in regulation 8(1)(b) of the Bankruptcy Regulations.| (2) The debtor must, within 3 days after filing the debtor’s bankruptcy application, serve a copy of the application, the affidavit supporting the application and the debtor’s statement of affairs on the Official Assignee. |
(3) The debtor must give written notice of the debtor’s bankruptcy application, together with a copy each of the affidavit supporting the application and the statement of the debtor’s affairs, to —| (a) | the person proposed to be appointed as the trustee of the estate of the debtor in the event a bankruptcy order is made on the application, if that person is not the Official Assignee; and | | (b) | if the debtor is a bankrupt, each person (who is not the Official Assignee) appointed as the trustee of the estate of the debtor under each subsisting bankruptcy order made against the debtor. |
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| (4) Where a debtor’s bankruptcy application, affidavit and statement of affairs have been filed under paragraph (1), the Official Assignee may, from time to time, require the debtor to deposit with the Official Assignee any further sums required by the Official Assignee (whether before or after the making of the bankruptcy order) to cover the fees and expenses incurred by the Official Assignee in connection with the debtor’s bankruptcy application. |
| (5) In paragraph (3)(b), a bankruptcy order made against a debtor is a subsisting bankruptcy order if the order has not been annulled and the debtor has not obtained a discharge in respect of the order. |
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| Service of debtor’s bankruptcy application on nominee supervising voluntary arrangement and partners of debtor |
104.—(1) Where a debtor’s bankruptcy application is made by the debtor at a time when a voluntary arrangement under Part 14 of the Act is in force between the debtor and the debtor’s creditors, the debtor must serve a copy each of the bankruptcy application, the affidavit supporting the application and the debtor’s statement of affairs on the nominee acting in relation to the voluntary arrangement.| (2) Where a debtor’s bankruptcy application is made against a firm by some of the partners in the firm, a copy each of the bankruptcy application, the affidavit supporting the application and the debtor’s statement of affairs must be served on each partner who did not consent to or participate in the making of the application. |
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| Hearing of debtor’s bankruptcy application |
105.—(1) The Court is not to hear any debtor’s bankruptcy application unless it is satisfied that a copy of the bankruptcy application, the affidavit supporting the application and the debtor’s statement of affairs have been duly served on each interested person.| (2) Any interested person may appear at the hearing of the debtor’s bankruptcy application and be heard. |
| (3) In this rule, “interested person” means a person on whom a debtor making a bankruptcy application is required under rule 104(1) or (2) to serve a copy each of the bankruptcy application, the affidavit supporting the application and the debtor’s statement of affairs. |
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| Deemed discontinuance of debtor’s bankruptcy application |
106.—(1) If it appears from the records maintained by the Court that no party to a debtor’s bankruptcy application has taken any step or proceeding in the bankruptcy application for a period of more than one year (or the period as extended by the Court under paragraph (3)) since the last step or proceeding that was taken in that bankruptcy application, the bankruptcy application is deemed to have been discontinued on the expiration of the period of one year (or the period as extended by the Court under paragraph (3)) from the taking of that last step or proceeding.| (2) Paragraph (1) does not apply where the debtor’s bankruptcy application has been stayed pursuant to an order of the Court. |
| (3) The Court may, on an application by any party made before the end of the period of one year mentioned in paragraph (1), extend the time for taking any step or proceeding to such extent as the Court may think fit. |
| (4) Where a debtor’s bankruptcy application has been discontinued under this rule, the Court may, on application, reinstate the bankruptcy application, and allow it to proceed on such terms as the Court thinks just. |
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Division 6 — Actions to follow upon making of bankruptcy order |
| Settlement and contents of bankruptcy order |
107.—(1) A bankruptcy order is to be settled by the Court.| (2) A bankruptcy order made on a creditor’s bankruptcy application must be in Form PIR‑13 and must contain the dates and notice set out in paragraph (4). |
| (3) A bankruptcy order made on a debtor’s bankruptcy application must be in Form PIR‑14 and must contain the dates and notice set out in paragraph (4). |
(4) A bankruptcy order mentioned in paragraph (2) or (3) must —| (a) | state the date of the filing of the bankruptcy application on which the order is made; | | (b) | state the date of the making of the order; and | | (c) | contain a notice requiring the bankrupt to attend on the trustee of the bankrupt’s estate at the place stated in the order. |
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| (5) Where the bankrupt is represented by a solicitor, the bankruptcy order must be endorsed with the name, address and telephone number of the solicitor and the file reference of the solicitor’s firm. |
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| Service of bankruptcy order |
108.—(1) Where a bankruptcy order has been made on a bankruptcy application, the applicant (whether a creditor or the bankrupt) must do the following (whichever is applicable) within 7 days after the making of the bankruptcy order:| (a) | where the Official Assignee is appointed as the trustee of the bankrupt’s estate — serve a sealed copy of the bankruptcy order on the Official Assignee; | | (b) | where a trustee in bankruptcy is appointed as the trustee of the bankrupt’s estate — serve a sealed copy of the bankruptcy order on the trustee in bankruptcy and on the Official Assignee. |
| (2) The trustee of the bankrupt’s estate appointed pursuant to a bankruptcy order made on a creditor’s bankruptcy application must serve a sealed copy of the bankruptcy order on the bankrupt. |
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| Gazetting of bankruptcy order |
109.—(1) The Registrar must, not later than 21 days after the making of a bankruptcy order, cause a notification of the order to be published in the Gazette.| (2) Where a trustee in bankruptcy has been appointed under the order, the notification in the Gazette must indicate the name and address of the trustee in bankruptcy. |
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| Publication of bankruptcy order |
110.—(1) The Official Assignee must, not later than 21 days after the making of a bankruptcy order, cause the order to be published in a manner that the Official Assignee thinks fit.| (2) Where a trustee in bankruptcy has been appointed, the publication mentioned in paragraph (1) must indicate the name, address and electronic mail address (if any) of the trustee. |
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111.—(1) The Court may grant a stay of a bankruptcy order upon the application of the bankrupt against whom the order is made or a creditor.| (2) Where an order is made under paragraph (1), the applicant must serve a copy of the order on the Official Assignee and, where a trustee in bankruptcy has been appointed, on the trustee in bankruptcy. |
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| Amendment of title of proceedings |
112.—(1) At any time after the making of a bankruptcy order, the trustee of the bankrupt’s estate may apply to the Court for an order amending the title of the proceedings.| (2) Where a bankruptcy order is made upon a creditor’s bankruptcy application, the creditor must apply to the Court for an order amending the title of the proceedings at the creditor’s own cost if so directed by the trustee of the bankrupt’s estate. |
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