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Articles
Bankruptcy Claw Back Amendments
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Bankruptcy Claw Back Amendments
An increase in the claw back period is part of changes to defeat “unreasonable” activity prior to bankruptcy.

Changes that were seriously overkill have been drafted and withdrawn after lobbying by professional bodies.

These changes have been expected since a High Court case in 2003 (Cook v Benson) put significant superannuation contributions out of reach of bankruptcy trustees.  The government's action in this area has been prompted by about a small number of Sydney barristers, who avoided their massive debts to the Australian Taxation Office, by declaring bankruptcy after transferring assets to related parties and making massive superannuation contributions.

Changes to apply from 31st May 2006 that the period during which an asset transfer can be declared void, even although the transfer is in contemplation of bankruptcy and was solvent at the time, will be increase from two years to four years.  Trustees in bankruptcy can recover property transferred to related parties for less than market value and from which the bankrupt continues to benefit - e.g. the family home.

Another claw back will allow recovery of excessive voluntary superannuation contributions made.

Another provision also presumes a person to be insolvent, if they fail to keep proper books and records and the person acquiring the property may need to show that it was not reasonable to infer that the main purpose of the transfer was to defeat creditors.

The amendments:-

  1. increase the claw back period from two to four years for transfers of property by a bankrupt to a related entity for less than market value;
  2. introduce a rebuttable presumption of insolvency where a bankrupt has failed to keep proper books, accounts and records;
  3. void a transfer made to defeat creditors if it was reasonable for the transferee to infer that the bankrupt's main purpose in transferring the property was to defeat creditors;
  4. allow the trustee to recover consideration given to third parties prior to bankruptcy;
  5. empower the court to make orders in relating to property or money of natural persons, where during the period of up to five years prior to bankruptcy:

    (a) the person acquired an estate in property as a direct or indirect result of financial contributions made by the bankrupt during that period; or the value of the person's interest in particular property increased as a direct or indirect result of financial contributions made by the bankrupt during the period; and

    (b) the bankrupt used or derive (directly of indirectly_ a benefit from the property during the relevant period; and
  6. clarify that ‘consideration' for the purposes of these provisions does not include any right that the transfer has given to their bankrupt spouse to reside at the transferred property (except in the case of marital breakdown).


8th-October-2007