Family Trusts – can i sack an appointor?

Question: My new client is in a pickle. His family trust has 3 Appointors: himself, his wife and his ex-accountant (his “Ex”). My client’s relationship has soured beyond the point of repair. My client wants nothing to do with his Ex (from what I’ve been told, Mel Gibson’s tirades have nothing on this loose cannon).

When my client set up his family trust in 1995, he said he followed his Ex’s advice blindly – including appointing the Ex as a joint Appointor for security of costs. Now my client and his wife want to remove the Ex as Appointor. But when I told him that he needed to get his Ex to sign the deed of resignation, he was not happy. My client argues that it is his trust and had he have known the power the Appointor has, he would have never given it to him in the first place.

I never understand why some accountants put themselves as joint Appointors. They have no business in the trust assets. I think it is unethical for an accountant to put themself as a joint Appointor as security for costs.

What are my client’s options? Can he go behind the back of the unwanted Appointor and sack him?

Answer: It is not generally in the best interest of the accountant to take up the role of Appointor or even co-Appointor. It puts tremendous pressure on the accountant and is often against the requirements of their governing body. The Accountant ends up wearing two hats. They are both the bossy Appointor and fiduciary accountant.

There is an argument that the accountant can take all the assets out of the trust. This has happened a number of times in my 21 years of practicing in this area. We generally get the money back, often without reverting to blackmail and threat of going to the press or courts.

However, thanks to Richstar and Dr Spry’s case there is an argument to have independent third parties hold positions of Appointor. However, in these instances you need a Shareholders Agreement or some other agreement to fetter and control the direction of the independent persons – again – otherwise they end up taking the money for themselves.

Surely the client should have read what they were signing?
It is a delicate balancing act – on one hand, clients shouldn’t set up trusts if they have no idea what is going on. It is lazy for the client to just say they didn’t understand. However, part of the job of professional advisers is to explain these obscure structures to clients.

When accountants take the time to advise their clients properly, it protects everyone:

Clients are protected because they make informed decisions;
Advisers are protected because the client can’t accuse you of forcing them into something they didn’t understand. It saves your professional reputation – clients have no grounds to complain about you to your professional body. It also stops costly negligence claims – which your PI insurance thanks you for.
Prevention is always better than cure.

What to do now
What can your client do? Well, he has three options (in this order):

Check the deed.
Ask the ex-accountant to resign.
Instruct a lawyer to prepare a deed of rectification (a risky last resort).
Check the deed
First, get a lawyer to check what the powers of the Appointor are. Must they act jointly, or can a majority of Appointors override the minority? If a majority can override the minority, then your client may be in luck. Get your client and his wife to sign a deed removing the old Appointor. The ex-accountant has no need to get involved. However, you need a lawyer to sign off on this. It is risky to change an Appointor without following the trust rules. If the removal is invalid, then all subsequent acts of the “new Appointor” have no effect. This surely causes taxation consequences.

Ask the ex-accountant to resign
The trustee is merely a ‘puppet’. The Appointor is ‘god’. You (or someone you control) should be the Appointor or joint Appointor. It is your trust, after all. So, what do you do now? Get a lawyer to prepare a Deed replacing the Appointor. Your client needs to swallow his pride and ask the accountant to sign this. If he refuses, argue that he only holds the position on trust for you. Tell him that he acted as your accountant, rather than a family member.

If the accountant digs in his heels, your best bet may be to jump ship. Form a new Family Trust and abandon the old one. You can only do this if you have no assets in your Family Trust. If there are assets in there, you might have to pay CGT and transfer duties. Harsh, but true.

You could also go to court and try and have the accountant removed. (Interestingly, our litigation team at Brett Davies Lawyers often goes to court to argue that the accountant should remain as the Appointor – but this is as against the trustee in bankruptcy. We usually win these. However, your position is different.)

Instruct a lawyer to prepare a deed of rectification (a risky last resort)
Read on if:

your Appointors must act jointly;
your accountant refuses to sign;
you don’t want to go to court; and
you have significant trust assets.

Criminal Law Survival Kit – reposted by Andre Di Cioccio

This is a site in progress.

The purpose of this site is to be a reference for working lawyers and students in the field of criminal law in New South Wales, Australia, about recent cases in the areas of criminal law and evidence, and to assist in public discussion and education about important issues which have practical importance for many people.

This website is written by John Stratton. I am a public defender.

The inspiration of the site was the fact that although criminal lawyers in Australia are pretty well served for primary materials (statutes and cases) there is very little by way of analysis on the Internet. Many of the Australian cases I have referred to can be found at Austlii.

Although I have tried to keep this site as up to date as possible, obviously anyone using it should rely on their own enquiries. In other words, no-one involved with the site has legal liability for damages for any decisions you may decide to make based on material on this web site.

The text of the Criminal Law Survival Kit is in two large documents, one on Crime and one on Evidence. At this stage I want to keep it that way to make searching easier. If you are having trouble searching either part, remember to make sure that the document has finished downloading onto your computer before you search.

Hopefully most of the abbreviations should be obvious but the reference to ‘PD’ is the Public Defender’s Recent Cases published in New South Wales Australia. Most of these summaries are now available at the Public Defenders’ Defender Bank.

INDEX

PART A: CRIMINAL LAW IN NEW SOUTH WALES

Chapter 1 From Arrest to Local Court

Chapter 2 Trial Procedure and Appeals

Chapter 3 The Elements of Crime

Chapter 4 Homicide

Chapter 5 Defences

Chapter 6 Sex and Violence

Chapter 7 Drug Offences

Chapter 8 Public Order Offences

Chapter 9 Traffic Offences

Chapter 10 Offences of Dishonesty

Chapter 11 Attempt, Conspiracy and Complicity

Chapter 12 Offences Against the Justice System

Chapter 13 Sentencing

PART B: EVIDENCE

Chapter 1 Relevance

Chapter 2 The Confession

Chapter 3 Identification

Chapter 4 Circumstantial Evidence

Chapter 5 Competence and Compellability of Witnesses

Chapter 6 Privilege

Chapter 7 Proof, Presumptions and Prima Facie

Chapter 8 The Examination of Witnesses

Chapter 9 Tendency and Coincidence Evidence

Chapter 10 The Defence Case and Character

Chapter 11 Real Evidence

Chapter 12 Illegally Obtained Evidence

Chapter 13 Documentary Evidence

Chapter 14 Opinion Evidence and Prior Determinations

Chapter 15 The Hearsay Rule

Chapter 16 Unreliable Evidence and Corroboration

Other Resources

Latest Developments

Some Useful Links

Some Useful Phone Numbers

Criminal Law Precedents

Criminal Law Survival Kit Guide to Circuit Work

Annotated NSW Bar Rules

Articles and Papers

Hearsay after the Evidence Act (updated as at November 2007)

Court Lists

Supreme Court

NSW District Court

Various Local Courts

Foundation Law: Other Court Lists

General Legal Research Databases for Australian Legislation and Case law

By far the best place to look for Australian legislation and case law is Austlii.

Austlii

ComLaw

Defender Bank- Public Defender’s Resources and Precedents

Specific Case law Databases

High Court Cases 1947-

New South Wales Court of Criminal Appeal (1999-)

New South Wales Supreme Court (1999-)

Some Frequently Used Legislation

Bail Act

Crimes Act

Summary Offences Act

Criminal Procedure Act

Crimes (Appeal and Review) Act

Evidence Act

Crimes (Sentencing Procedure) Act

Criminal Appeal Act

Drug Misuse and Trafficking Act

Customs Act

Commonwealth Crimes Act

NSW Parliamentary Counsel’s Office (for historical versions of NSW legislation)

Search this site, courtesy of Austlii.

Queen of Mean leaves everything to dog

When the notorious “Queen of Mean” Leona Helmsley died and left $12 million to her dog Trouble – trouble indeed ensued. Her surviving family, left distraught and penniless, were not pleased.

But regardless of Helmsley’s reasons, it does pose an interesting question. Our Will should reflect our will. So, why can’t we just leave what we want to whom we want? Unfortunately, it is a bit more complicated.

Who can challenge my Will?

It doesn’t matter who you are – your Will can be challenged. But only by certain people. Potential challengers can only come from 5 types of relationships:

1. Your parents
2. Your spouse
3. Your children (adopted children but not children born from sperm or egg donation)
4. Your grandchildren
5. Anyone that you are ‘maintaining’ (but not in all States).

Who is your spouse? It’s not as simple as it sounds. Of course, the person you are married to is your spouse. But the ‘spousal level’ also includes your de-facto. In some States, it also includes your gay partner. The government now allows for such bigamy. You owe spousal obligations to your wife, de-facto and gay partner – all at the same time.

How do I stop people from challenging my Will?

Sadly, you can’t stop anyone from challenging your Will. You’re dead, so I guess you can’t really do anything anyway. If the challenger falls within any of the categories above, then they have a right to challenge. Nothing you can do can take away this right. For example, you can’t say, “I give $20,000 to Bertie White, but if she challenges my Will then the gift is void.” That’s the Court’s job to decide, not yours.

What is the silver lining? Just because someone can challenge your Will, doesn’t mean that they are successful.

How do I stop people from vulturing my money?

1. Instruct a specialist lawyer to prepare your Will.

The benefit? Your Will is explained by a lawyer. It’s not like you bought some $20 penny-dreadful Will kit from the Post Office and signed it blindly. Your lawyer keeps contemporaneous file notes about what you say. Your lawyer explains the effect of your Will before you sign it. This is about the strongest indicator that you can give the Court.

Where required, Brett Davies Lawyers, drafts a ‘considered person’ clause into your Will. It shows the Court that you haven’t merely ‘forgotten’ about the person you decided to disinherit. It’s a non-offensive clause that confirms that you have considered your obligation to the person and have decided that they should not receive anything further from you. Some people want to put in the gory details such as infidelity. While perhaps an enjoyable read to the public, it’s not a good idea to put in any reason why you’ve disinherited them. Why? Well, once your executors lodge the Will to get a Grant of Probate, it becomes a public document. Anyone can see it -including Ms Busybody next door. There is no reason to air your dirty laundry.

I want to leave it all to my dogs

You can’t just leave money to an animal. You need your Will to set up a trust for the benefit of your pet. You would appoint someone that you trust as the appointor and trustee of the trust. That person can only use the money for the benefit, happiness and upkeep of your pet.

SMSF Borrowing documents updated to reflect law changes

SMSF Borrowing documents updated to reflect law changes

What are the changes to the law?

The highlights of the changes to the law are:

• The name of the SMSF borrowing arrangements has changed from ‘Instalment Warrant Borrowing arrangements’ to ‘Limited Recourse Borrowing arrangements’.

• The SMSF can use the borrowed money to meet expenses incurred in connection with the borrowing – for example: conveyancing fees, stamp duty, brokerage or loan establishment costs.  Previously, it was uncertain whether the money could be used for those expenses.

• The concept of ‘single acquirable asset’ has been clarified, and narrowed, in relation to shares etc.

• The SMSF can refinance its borrowing.

What new rules? Can I take a look?

Parliament is considering a new bill which proposes amendments to the Superannuation Industry (Supervision) Act 1993 (SIS Act).[1] You can access a copy of the bill, and explanatory memorandum, here.

The bill was introduced to Parliament on 26 May 2010. It will be examined by the Senate Economics Legislation Committee which is due to file a report by 15 June 2010.

When will the new rules apply?

The new rules will apply to super fund borrowing arrangements made from the day after the Bill receives Royal Assent — which is the last stage of the enactment process after both Houses of Parliament have passed the Bill.

However, the rules will apply to any existing arrangements if (after the bill receives Royal Assent) those arrangements:

• are refinanced; or
• are varied to the extent that the original borrowing arrangement has effectively been rescinded or replaced.

What do the new rules clarify or change?

The new rules clarify these issues:

• The super fund can use borrowed money only to acquire a ‘single acquirable asset’ (original asset), except that the money can be used to meet expenses incurred in connection with the borrowing;
• The concept of ‘single acquirable asset’ extends to a collection of shares in a company, a collection of units in a trust, or a collection of stapled securities (shares in a company stapled to units in a trust) — as long as the collection is of shares, or units, or stapled securities of the same class with the same market value;
• If the original asset purchased is shares, units, or stapled securities, then the original asset can be replaced — but only with shares, or units, or stapled securities, in the same entity and in the same class and of the same market value; and
• The super fund can refinance its borrowing.

What do the new rules restrict?

The new rules add the following new restrictions:

• As discussed above, the concept of ‘replacement assets’ is limited to replacing shares in companies, units in trusts and stapled securities;
• The rights of any person (not just the lender’s) against the super trustee in relation to a super borrowing arrangement are limited to rights relating to the original asset; and
• The only security (that is, a mortgage, charge, lien, etc) which can be given or held over the original asset must be one which is associated with the direct borrowing arrangement.

What has not changed?

For those of us waiting to see whether there is a radical policy shift in the area of borrowing by super funds, it is interesting that the changes really focus on:

• providing some clarity on how the rules work; and
• building in some new restrictions.

But the Federal Government is not proposing a radical reworking of the rules. So:

• super funds can still borrow;
• the arrangements in respect of custodians and custody trusts remain the same; and
• trustees, and their lenders, need to continue to be careful about quarantining rights in respect of default to the single superannuation asset.

What’s next?

The new rules are before the Parliament, and Parliament will consider making them law (provided that the Senate Committee provides its report by 15 June) when it sits from 15 June until 24 June 2010 – so hopefully the new rules will be finalised before the end of the financial year.

We will keep you posted.

Victoria Legal Aid

Contacts

Victoria Legal Aid
Tel: 9269 0234
Tel: (toll free for regional callers) 1800 677 402

Legal Information Service
Tel: 9269 0120
Tel: (toll free for regional callers) 1800 677 402

Child Witness Service

Contacts

Child Witness Service – Department of Justice
Tel: 03 9603 9266
Tel: 1300 790 540 (regional callers)

Giving Evidence

Contacts

Court Network
State-wide Court Network Telephone and Referral Service – open between 9.00am and 5.00pm every weekday.
Tel: 03 9603 7433 or
Tel: (toll free) 1800 681 614

Witness Assistance Service
If the court case is being prosecuted by the Office of Public Prosecutions
Tel: 03 9603 7523 or 03 9603 7422 or
Tel: (toll free)1800 641 927

Victims Assistance and Counselling Program
Victims of Crime Helpline: 1800 819 817

Going to Court

Going to Court

There are a number of reasons you may need to attend court – either as a party to a case, as a witness or to support family or friends. In this section you will find introductory information about:

• giving evidence in court
• making an oath or affirmation
• how different people are able to provide affidavits to the court.

You will also find:

• clear explanations of commonly used terms including who the accused persons and plaintiffs are
• how juries are selected and their rights and responsibilities
• how judgments are passed.

There is also a list of support services including information about legal aid and victim support.

You should visit individual court sites to find specific information about how each court works. If you are going to court you should also seek legal advice.

How do I go bankrupt?

How do I go bankrupt? The provider of this information is Insolvency & Trustee Services Ausralia.

Need further information? Visit our legal forum where you can ask questions and search for similar topics. HOW DO I GO BANKRUPT? Reproduced by express permission form the Commonwealth Government, Insolvency and Trustee Services Australia. June 2004 Edition Why choose bankruptcy? If you cannot pay your debts, and have been unable to come to a compromise or arrangement with your creditors, then you may decide to go bankrupt. Bankruptcy is a process where people receive the protection of the Bankruptcy Act. The Prescribed Information booklet details alternatives to bankruptcy and the obligations and consequences of bankruptcy. Financial counsellors and other advisers can also give you information about bankruptcy and alternative options. See the ITSA website http://www.itsa.gov.au or contact ITSA offices (see rear cover) for booklets or lists of contacts. Warning: The consequences of bankruptcy are serious. It should only be chosen after you have looked at every other option. Can anyone go bankrupt? There are no income, asset or debt limits if you decide to apply for bankruptcy. To become bankrupt you: cannot have an unfinalised Part IX Debt Agreement or Part X agreement in place, and must be ordinarily resident in Australia; or have owned a house or business, or have carried on a business, in Australia, or must be personally present in Australia when you lodge your debtor’s petition. If you have any questions please ask ITSA. Do not lodge your bankruptcy documents if you do not understand how it will affect you. How do I become bankrupt? To apply to become bankrupt you need to complete and lodge the following three documents with the ITSA office in your state or territory. These documents are available from ITSAs website and offices, registered trustees and many financial counsellors. Note: you can lodge your documents in person, by post or by fax you cannot lodge your documents by email. 1. Debtor’s Petition This is your application to become bankrupt. You need to: answer every question sign and date it in front of a witness (who must also sign and date it). Warning: The presentation of a Debtor’s Petition is an act of bankruptcy. If your Debtor’s Petition is rejected, a creditor can use this to apply to the Federal Court or Federal Magistrates Service to make you bankrupt. 2. Statement of Affairs This document identifies who you are. It will provide your trustee with essential information, such as your income, assets, debts and business dealings. You need to: attach any documents if asked to do so sign it. Warning: There are penalties under the Bankruptcy Act for providing false or misleading information. 3. Acknowledgement that you have received and read the Prescribed Information booklet The Bankruptcy Act prescribes that information about alternative options to bankruptcy and the consequences of bankruptcy must be given to people who are contemplating bankruptcy. You need to: read the booklet sign and then detach the Acknowledgement on page 19 attach the signed Acknowledgement to your bankruptcy papers. Creditors can make you bankrupt One of your creditors may apply to the Court in a Creditor’s Petition to make you bankrupt if you have committed what is called an act of bankruptcy. The most common act of bankruptcy relied on by a creditor is a failure to comply with a bankruptcy notice requiring that the creditor’s debts, of at least $2,000, be paid within 21 days. What happens after I lodge my bankruptcy documents with ITSA? ITSA will decide whether to accept your Debtor’s Petition within one business day (Monday to Friday) of you lodging your documents. ITSA examines your documents to make sure that: they have been fully and properly completed and signed all necessary attachments are included there is no reason to reject your petition. ITSA will not accept your documents if there is information or attachments missing. Your documents will be returned to you for amendment. In a very few cases, your Debtor’s Petition may be rejected if ITSA considers that: you are able to pay your debts within a reasonable time, and either you have previously been bankrupt on your own petition three or more times or once in the last five years, or you are unwilling to pay one or more creditors or creditors in general. ITSA will talk to you before deciding to reject your petition. If your petition is rejected, ITSA will write to you to explain why your Debtor’s Petition has been rejected and how to obtain a review of this decision. More information is available in the pamphlet: Debts and Creditors: What happens to them if I go bankrupt? If your Debtor’s Petition is accepted You become bankrupt within one day. You are given an administration number. ITSA records your bankruptcy on the NPII (National Personal Insolvency Index) database. Your name will appear on the NPII forever. A trustee will administer your bankruptcy. ITSA will be your trustee unless a registered trustee has consented to be your trustee. Your assets, income and debts must be disclosed to your trustee. Your trustee advises your creditors of your bankruptcy and provides them with a summary of your Statement of Affairs. Your trustee will sell your divisible assets. Your trustee will assess you for income contributions. You may have to pay contributions for the benefit of your creditors. You are released from certain debts when you are discharged from bankruptcy. However, there may be some debts you still have to pay. More information is available in the pamphlets: Debts and Creditors: What happens to them if I go bankrupt? Assets: What happens to my assets if I have to go bankrupt? Contributions: Will I have to make payments from my income? Your trustee If you make yourself bankrupt you may choose your own trustee to administer your bankruptcy. If you do not choose a trustee, ITSA will be your trustee. If a creditor makes you bankrupt, they choose your trustee. During your bankruptcy, your creditors may decide to change your trustee, and trustees may also obtain the consent of another trustee to replace them. When will I be discharged from bankruptcy? A discharge from bankruptcy normally happens automatically 3 years and 1 day after your Statement of Affairs has been lodged with and accepted by ITSA. In some circumstances, the period of your bankruptcy may be extended to either 5 or 8 years if your trustee lodges an objection to your discharge with ITSA. An objection is usually lodged because a bankrupt has not co-operated with the trustee or there has been some misconduct. Your bankruptcy can only be annulled (cancelled) earlier through: payment of your debts in full, or an offer to creditors (composition), or application to the Court. More information is available in the pamphlets Annulment and Discharge Where to contact us Telephone 1300 364 785 ITSA website wwwitsa.gov.au ITSA Offices ACT Level 2, NFF House, 14-16 Brisbane Avenue BARTON ACT 2600 Tel: 1300 364 785 Fax: (02) 6270 3608 email: itsa.canberra@itsa.gov.au New South Wales GPO Box 548 SYDNEY NSW 2001 Level 8, 135 King Street SYDNEY NSW 2000 Tel: 1300 364 785 Fax: (02) 8233 7891 email: itsa.sydney@itsa.gov.au Queensland Brisbane PO Box 10443 Adelaide Street BRISBANE QLD 4001 Level 16, 340 Adelaide Street BRISBANE OLD 4000 Tel: 1300 364 785 Fax: (07) 3360 5466 email: itsa.brisbane@itsa.gov.au Townsville PO Box 1527 TOWNSVILLE QLD 4810 Level 1, National Australia Bank Building 315 Ross River Road AITKENVALE OLD 4814 Tel: 1300 364 785 Fax: (07) 4727 0500 email: itsa.townsviIIe-0itsa.gov.au South Australia/Northern Territory GPO Box 2604 ADELAIDE SA 5001 Level 18, Grenfell Centre 25 Grenfell Street ADELAIDE SA 5000 Tel: 1300 364 785 Fax: (08) 8112 4305 email: itsa.adelaide@itsa.gov.au Tasmania GPO Box 850 HOBART TAS 7001 Level 4, ANZ Centre 22-26 Elizabeth Street HOBART TAS 7000 Tel: 1300 364 785 Fax: (03) 6221 7700 email: itsa.hobart@itsa.gov.au Victoria Level 10, Melbourne Central 360 Elizabeth Street MELBOURNE VIC 3000 Tel: 1300 364 785 Fax: (03) 9272 4900 email: itsa.melbourne@itsa.gov.au Western Australia GPO Box H536 PERTH WA 6841 Level 12, Durack Centre 263 Adelaide Terrace PERTH WA 6000 Tel: 1300 364 785 Fax: (08) 9268 1298 email: itsa.perth@itsa.gov.au More information pamphlets are available. See the website or contact ITSA for a complete list.

Discharge: How and when does my bankruptcy end?

Discharge: How and when does my bankruptcy end? The provider of this information is Insolvency & Trustee Services Ausralia.

DISCHARGE HOW AND WHEN DOES MY BANKRUPTCY END? Reproduced by express permission form the Commonwealth Government, Insolvency and Trustee Services Australia. June 2004 Edition What is discharge? Discharge is the end of bankruptcy. When will I be discharged from bankruptcy? Discharge from bankruptcy normally happens automatically 3 years and 1 day after your Statement of Affairs was lodged with and accepted by ITSA. If you have been made bankrupt by the Court your Statement of Affairs was probably lodged some time after the date of bankruptcy. There is no need to apply for discharge and there is no fee. You can get written confirmation of your discharge from bankruptcy by: asking your trustee searching the public record (the National Personal Insolvency Index or NPII database). More information is available in the pamphlet: Searching the Public Record In some circumstances, you can be bankrupt for longer than 3 years for reasons discussed later in this pamphlet. What happens after discharge? Your name will appear on the NPII forever. The administration of your bankruptcy by your trustee may continue after you are discharged. Your trustee may not have finalized investigations or the sale of assets, or you may still have income contributions to pay. What are my legal obligations after discharge? You must assist your trustee to finalise the administration of your bankruptcy. You must advise your trustee of changes in your address or financial circumstances if requested to do so. You must pay outstanding income contributions. Assets in your bankruptcy which have not been sold by your trustee before the date of your discharge are not automatically returned to you. In limited circumstances, your trustee has a time limit of 6 years after your discharge to deal with assets (other than cash). More information is available in the pamphlet: Assets: What happens to my assets if I go bankrupt? Your trustee is the person who administers your bankruptcy or Part X agreement; either a registered trustee or ITSA. See the Prescribed Information booklet for definitions of other bankruptcy terms What happens to my debts after I am discharged? You are released from certain debts when you are discharged from bankruptcy. However, there may be some debts that you will still have to pay. Debts you still have to pay during and after bankruptcy 1. Some debts are not provable in bankruptcy. Creditors with these types of debt cannot receive any money from your bankrupt estate but they can continue debt recovery action against you even during bankruptcy eg: penalties and fines imposed by a court damages from accidents (eg car accidents) unless, before bankruptcy, the sum of damages has been fixed by a court judgment or you have a written agreement with the other party student assistance/supplement loans. 2. Assets that you wish to keep but which are secured to a creditor (eg house mortgage). You will need to keep paying for these assets or the creditor will take them back. More information is available in the pamphlet: Assets: What happens to my assets if I go bankrupt? 3. Any new debts created on or after your date of bankruptcy. Debts you still have to pay after your discharge Creditors of certain types of debt (provable debts) can receive money from your bankrupt estate and can also continue debt recovery action against you after you are discharged from bankruptcy eg: child support debts maintenance accumulated HECS (Higher Education Contribution Scheme) debts owing when you became bankrupt, excluding any amount shown on a notice of assessment issued by the Australian Tax Office (ATO) before you became bankrupt – ask the ATO if you need more information debts incurred by fraud. More information is available in the pamphlet: Debts and Creditors: What happens to them if I go bankrupt Released from debt – you are no longer liable for or have to pay this debt Provable debt – an amount for which a creditor is entitled to claim a dividend in your bankruptcy Can I be discharged in less than 3 years? No. However, in some circumstances, you may be able to have your bankruptcy annulled (cancelled). A bankruptcy can be annulled in three ways: 1. Payment in full – your creditors and your trustee’s fees and expenses have been paid in full. This usually happens because your trustee has sold assets and/or you have paid money ot your trustee from your income or another source. 2. Composition or arrangement – creditors accept an offer made by you through a trustee for finalizing your debts. This usually arises when a friend or family member helps by offering a lump sum to your creditors. The offer must also provide for payment of your trustee’s fees. 3. Application to the Court – in some limited circumstances, you may apply to the Federal Court or Federal Magistrates Service to have your bankruptcy annulled if you think you should not have been made bankrupt or should not have lodged your Debtor’s Petition. You should seek legal advice before making such an application. More information is available in the pamphlet: Annulment: Can my bankruptcy be cancelled? Can I be bankrupt for more than 3 years? The period of your bankruptcy may be extended to 5 or 8 years if your trustee lodges an objection to your discharge with ITSA. Your trustee may lodge an objection on a number of grounds, such as your failure to: provide information to, and assist, your trustee disclose to your trustee all income pay assessed income contributions explain how money was spent reveal all assets and creditors. You may request a review of an objection. More information is available in the pamphlet: Can I Appeal? Review and appeal of trustee and administrator decisions Where to contact us Telephone 1300 364 785 ITSA website wwwitsa.gov.au ITSA Offices ACT Level 2, NFF House, 14-16 Brisbane Avenue BARTON ACT 2600 Tel: 1300 364 785 Fax: (02) 6270 3608 email: itsa.canberra@itsa.gov.au New South Wales GPO Box 548 SYDNEY NSW 2001 Level 8, 135 King Street SYDNEY NSW 2000 Tel: 1300 364 785 Fax: (02) 8233 7891 email: itsa.sydney@itsa.gov.au Queensland Brisbane PO Box 10443 Adelaide Street BRISBANE QLD 4001 Level 16, 340 Adelaide Street BRISBANE OLD 4000 Tel: 1300 364 785 Fax: (07) 3360 5466 email: itsa.brisbane@itsa.gov.au Townsville PO Box 1527 TOWNSVILLE QLD 4810 Level 1, National Australia Bank Building 315 Ross River Road AITKENVALE OLD 4814 Tel: 1300 364 785 Fax: (07) 4727 0500 email: itsa.townsviIIe-0itsa.gov.au South Australia/Northern Territory GPO Box 2604 ADELAIDE SA 5001 Level 18, Grenfell Centre 25 Grenfell Street ADELAIDE SA 5000 Tel: 1300 364 785 Fax: (08) 8112 4305 email: itsa.adelaide@itsa.gov.au Tasmania GPO Box 850 HOBART TAS 7001 Level 4, ANZ Centre 22-26 Elizabeth Street HOBART TAS 7000 Tel: 1300 364 785 Fax: (03) 6221 7700 email: itsa.hobart@itsa.gov.au Victoria Level 10, Melbourne Central 360 Elizabeth Street MELBOURNE VIC 3000 Tel: 1300 364 785 Fax: (03) 9272 4900 email: itsa.melbourne@itsa.gov.au Western Australia GPO Box H536 PERTH WA 6841 Level 12, Durack Centre 263 Adelaide Terrace PERTH WA 6000 Tel: 1300 364 785 Fax: (08) 9268 1298 email: itsa.perth@itsa.gov.au More information pamphlets are available. See the website or contact ITSA for a complete list.