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Order 76 - Bankruptcy

^[1] - Bankruptcy

I. Preliminary

1. (1)^[2] In this Order and in the forms in Appendix O:

“the Act” means the Bankruptcy Act 1988;

“the Bank” means the Central Bank of Ireland or a bank authorised to carry on business in the State;

“bankruptcy payment order” means a bankruptcy payment order under section 85D of the Act;”

“centre of main interests” shall be construed in accordance with the Insolvency Regulation;

“committee of inspection” means the committee of inspection appointed for the purpose of winding up the estate of a bankrupt in accordance with section 110 of the Act where so appointed;

“the Court” means the Judge to whom causes and matters in Bankruptcy are for the time being assigned by the President of the High Court and includes any other Judge for the time being so assigned and acting in any such matters;

“Court file” means the file kept by the proper officer;

“debt proved” includes any debt which has been duly admitted without proof;

“document” includes a book, paper or writing of any kind, and any matter stored by way of microfilm or electronic or digital information systems and capable of being reproduced in a legible form;

“establishment” has the meaning assigned by Article 2(h) of the Insolvency Regulation;

“form” means the appropriate form in Appendix O or such other form as is from time to time prescribed or sanctioned by the Court in cases where no form has been prescribed;

“insolvency proceedings” means the collective proceedings set out in Article 1 of the Insolvency Regulation and

(a) in relation to the State, set out in Annex A to the Insolvency Regulation under the heading “Ireland”, and

(b) in relation to another Member State, set out in Annex A to the Insolvency Regulation under the heading relating to that Member State;

“the Insolvency Regulation” means Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ L160/1 of 30 June 2000);

“the Judge” means the Judge to whom causes and matters in Bankruptcy are for the time being assigned by the President of the High Court and includes any other Judge for the time being so assigned and acting in any such matters;

“liquidator in main proceedings” means a person performing, in relation to a debtor, functions described in Article 2(b) of the Insolvency Regulation in main proceedings opened in a Member State other than the State;

“main proceedings” means proceedings opened in accordance with Article 3(1) of the Insolvency Regulation and falling within the definition of insolvency proceedings in Article 2(a) of the Insolvency Regulation and

(a) in relation to the State, set out in Annex A to the Insolvency Regulation under the heading “Ireland”, and

(b) in relation to another Member State, set out in Annex A to the Insolvency Regulation under the heading relating to that Member State;

“Member State” means a member state of the European Union other than the Kingdom of Denmark;

“Official Assignee” has the same meaning as in section 3 of the Act;

“proper office” means the Examiner’s Office;

“proper officer” means the Examiner or such other officer as may have been designated by the President of the High Court to exercise the powers and functions of the Examiner;

“the 2010 Regulations” means the European Communities (Consumer Credit Agreements) Regulations 2010 (SI No 281 of 2010);

“secondary proceedings” means proceedings opened in accordance with Articles 3(2) and 3(3) of the Insolvency Regulation and falling within the definition of insolvency proceedings in Article 2(c) of the Insolvency Regulation and

(a) in relation to the State, set out in Annex B to the Insolvency Regulation under the heading “Ireland”, and

(b) in relation to another Member State, set out in Annex B to the Insolvency Regulation under the heading relating to that Member State;

“the sitting for distribution” means the sitting of the Court held or to be held in pursuance of section 82(2) of the Act;

^[3] “territorial proceedings” means proceedings opened in accordance with Article 3(2) and 3(4) of the Insolvency Regulation and falling within the definition of insolvency proceedings in Article 2(a) of the Insolvency Regulation and

(a) in relation to the State, set out in Annex A to the Insolvency Regulation under the heading “Ireland”, and

(b) in relation to another Member State, set out in Annex A to the Insolvency Regulation under the heading relating to that Member State;

“trustee” means the trustee appointed for the purpose of winding up the estate of a bankrupt in accordance with section 110 of the Act where so appointed;

any reference to any book, paper or record includes, where the context so admits or requires, reference to any copy of such book, paper or record in electronic form[4].

(2) In rules 20-23 inclusive, 25, 29, 36, 38, 69, 102, 105, 123 to 125 inclusive, 136 to 138 inclusive and 155 a reference to a “creditor” shall, where relevant, include reference to a liquidator in main proceedings.

(3) In any case in which main proceedings or secondary proceedings have been opened in a Member State other than the State, the Official Assignee shall, where such document may be relevant to the main proceedings or secondary proceedings concerned, immediately send a copy of every petition, notice, report, affidavit or other document in the proceedings in the State in respect of the debtor to the liquidator in the main proceedings or secondary proceedings by electronic mail or facsimile where possible or otherwise by registered prepaid post, in accordance with and for the purposes of Article 31 of the Insolvency Regulation.

II. Proceedings Generally

2. Proceedings in matters of bankruptcy or arrangement, proceedings under Part VI of the Act and proceedings under the Insolvency Regulation in matters of bankruptcy shall be entitled:

“THE HIGH COURT BANKRUPTCY”.

3. The prescribed forms shall be used in all such proceedings.

4. All such proceedings (except notices to creditors) shall be written or printed or partly written and partly printed on paper measuring 210 millimetres by 297 millimetres or thereabouts, with a binding margin 45 millimetres wide; but no objection shall be allowed to any proof of debt or proxy on account of its being written or printed on paper of any other size.

5. The proper officer shall cause to be opened in each matter a Court file on which all proceedings in the matter shall be placed and recorded so as to form a complete record of the matter and they shall not be removed from such file for any purpose without a special direction of the Court or the proper officer.

6. Every document or proceeding to be signed by the Court shall be first examined or signed by the proper officer.

7. All summonses, orders, warrants, certificates and other process issued by the Court shall be sealed and signed by the proper officer and shall be taken up from the proper officer.

8. In lieu of attaching a copy of Iris Oifigiúil to the proceedings in each bankruptcy or other matter, one copy of every Iris Oifigiúil shall be filed and preserved by the proper officer.

9. All notices and other proceedings for the delivery of which no special mode is prescribed may be sent by prepaid ordinary post to the last known address of the person to be served therewith.

III. Bankruptcy Summons

10. A bankruptcy summons shall be in the Form No 1 and shall:

(a) require the debtor, within fourteen days after the service of the summons upon him, to pay the debt to the creditor or to secure the payment of the debt to the satisfaction of the creditor or to compound the debt to the satisfaction of the creditor, and

(b) state that in the event of the debtor failing to pay the sum specified in the summons or to secure or compound for it to the satisfaction of the creditor such default shall be an act of bankruptcy.

11. (1)^[5] A creditor desirous that a bankruptcy summons may be granted shall, not earlier than fourteen clear days after he shall have served a notice in the Form No 4, file in the proper office a copy of such notice, together with an affidavit in the Form No 5 of the truth of his debt made by himself or by any other person who can swear positively to the facts verifying the truth of his debt, and that no form of execution has issued in respect of such debt and remains to be proceeded upon, and shall lodge with the proper officer any bills, notes, guarantees, contracts, judgments or orders referred to in his affidavit together with the summons which it is proposed to issue.

(2) Where a debt of any part thereof is for money lent pursuant to a credit agreement to which either the Consumer Credit Act 1995 applies or the 2010 Regulations apply, or interest or charges in connection with such an agreement, the affidavit shall contain:

(b) particulars showing compliance of the credit agreement as to content with the requirements of Part III of the Consumer Credit Act 1995 or, as the case may be, Part 4 of the 2010 Regulations, which particulars shall be verified by the affidavit.

(3) A creditor who has complied with the requirements of sub-rules (1) and (2) shall apply ex parte to the Court for the grant of a Bankruptcy Summons at such time and place as shall have been fixed for the hearing of the application.

12. (1) A bankruptcy summons may be granted in accordance with section 8(2) of the Act to two or more creditors who are not partners, upon the affidavits of each of them.

(2) A bankruptcy summons may be granted to a partnership upon the affidavit of one of the partners.

(3) A bankruptcy summons may be granted to a company or other body corporate upon the affidavit of the secretary, director or other person duly authorised in that behalf.

(4) Detailed particulars of demand shall be endorsed upon or annexed to the bankruptcy summons. No objection shall be allowed to the particulars unless the Court considers that the debtor has been misled by them. An original and at least two copies of every bankruptcy summons and particulars shall be lodged with the proper officer at the time of issue, and shall be sealed.

13. (1)^[6] Every bankruptcy summons shall be endorsed with the name and registered place of business of the solicitor for the summoning creditor. If no solicitor is employed for the purpose, it shall bear an endorsement stating that it has been granted to the creditor in person, together with his residence and an address for service at which a notice to dismiss the summons or any other notice or proceeding in the matter may be served.

(2)^[7] There shall be endorsed on the summons in addition to an intimation of the consequences of neglect to comply with the requisition of the summons, a notice to the debtor that if he disputes the debt and desires to obtain the dismissal of the summons he must file an affidavit within fourteen days after service of the summons stating (a) that he is not so indebted or only so indebted to an amount of €20,000 or less or (b) that before the service of the summons he had obtained the protection of the Court or (c) that he has secured or compounded the debt to the satisfaction of the creditor.

(3)^[8] [ • ]

14. (1) A bankruptcy summons shall be personally served within twenty-eight days from the date of the summons by delivering to the debtor a sealed copy of the summons with endorsed or annexed particulars of demand together with a true copy of the affidavit filed in accordance with rule 11. If personal service within the time limit cannot be effected, the Court may grant extension of the time for such service. If the Court is satisfied by affidavit that the debtor is evading service or that from any other cause prompt personal service cannot be effected, it may order service to be effected in the manner permitted by Order 9, rule 2 as if the debtor were a defendant, or make such order for substituted or other service, or for the substitution for service of notice by letter, public advertisement (in the Form No 8), or otherwise, as may be just.

(2) The person serving a bankruptcy summons shall, within three days at most after service, endorse on the summons the day and date of the service thereof, and every affidavit of service of such summons shall mention the date on which such endorsement was made. Such affidavit shall be in the Form No 3.

15.^[9] The affidavit mentioned in sub-rule (2) of rule 13 shall be in the Form No 6. Where a debtor files such affidavit, the time shall be fixed by the proper officer at which the application for the dismissal of the summons will be heard by the Court. Notice thereof in the Form No 7 shall be given and the affidavit served by the debtor, not less than four days before the date so fixed, by service of the notice and the affidavit on the solicitor for the summoning creditor at his registered place of business or, if no solicitor is employed, by service on the summoning creditor at his address for service. In default of the debtor giving notice or in default of his appearance before the Court at the time fixed his application shall be dismissed.

IV. Security

16. (1) Where a person is required to give security, such security, unless otherwise specially directed by the Court, shall be in the form of a bond with one or more sureties.

(2) The bond shall be taken in such sum as the Court shall fix having regard to the amount in issue and the probable cost of the proceeding.

(3) Where a person is required to give security he may in lieu of entering into a bond lodge in Court to the credit of the matter such sum as the Court shall fix. Notice of such lodgment having been made shall be given forthwith to the person entitled to the security. Money so lodged shall be subject to the order of the Court and shall be drawn out by the draft of the Official Assignee, but every such draft shall be signed also by the Judge.

(4) The security of a guarantee association or society approved of by the Court may be given in lieu of a bond or a lodgment.

(5) In all cases where a person proposes to give a bond by way of security he shall serve two clear days previously on the solicitor for the person to be secured, or on such person when no solicitor has been employed, notice of the proposed sureties and of the time and place appointed for the execution of the bond according to the prescribed form.

(6) The sureties shall make an affidavit of their sufficiency according to the prescribed form unless the person to be secured shall dispense with such affidavit, and such sureties shall attend the Court to be cross-examined if required.

(7) The bond shall be executed and attested in the presence of the Official Assignee unless otherwise directed by the Court.

V. Declaration of insolvency

17. Any debtor may file a declaration of his insolvency in the Form No 9 and such declaration shall be signed by the debtor in the presence of a solicitor, who shall inform such debtor of the nature and effect thereof and shall subscribe his name as witness to the due execution thereof, and file an affidavit in the Form No 10, verifying such declaration of insolvency.

18. A petition of bankruptcy filed by any debtor shall be deemed to include a declaration of insolvency, and no such declaration shall in such case be necessary.

VI. Bankruptcy petition

A. Bankruptcy Petition by a person other than the Debtor (including petition to open territorial proceedings under the Insolvency Regulation)

19. (1)^[10]A petition by a person other than the debtor shall be in the Form No 11 and shall:

(a) contain a statement showing the nature and amount of the debt and showing that the debt has not been paid, secured or compounded;

(b) recite the specific act of bankruptcy on which the petition is founded;

(c) [^11] contain an undertaking by the petitioner to advertise notice of the adjudication in the manner directed by the Court, and to bear the expenses of such advertisement;

(d) contain:

(i) statements that the Insolvency Regulation applies to the proceedings and that the debtor’s centre of main interests is situated in the State and the facts and grounds supporting each statement; or

(ii) statements that the Insolvency Regulation applies to the proceedings, that the debtor’s centre of main interests is situated in another specified Member State and that the debtor has an establishment within the State and the facts and grounds supporting each statement; or

(iii) a statement that the Insolvency Regulation does not apply to the proceedings, and in such case, shall contain a statement that the debtor is domiciled in the State or that, within a year before the date of the presentation of the petition, he has ordinarily resided or had a dwellinghouse or place of business in the State, or that he has carried on business in the State personally or by means of an agent or manager, or that he is or within the said period has been a member of a partnership which has carried on business in the State by means of a partner, agent or manager and the facts and grounds supporting that statement;

(e) where the Insolvency Regulation applies to the proceedings, contain a statement that, to the petitioner’s knowledge, no insolvency proceedings have been opened in respect of the debtor in any Member State or Member States (other than the State), or that such insolvency proceedings have been opened and if so, whether those insolvency proceedings are main proceedings, secondary proceedings or territorial proceedings;

(f) indicate whether the petitioner had, prior to presenting the petition, received a proposal for a Debt Settlement Arrangement or a Personal Insolvency Arrangement and, where such proposal had been received, specify the details of the proposal;

(g) [^12] contain an indemnity on the part of the petitioner, indemnifying the Official Assignee as to such costs, fees and expenses of the Official Assignee as the Court may upon the application of the Official Assignee direct, and

(h) contain notice of the date for the hearing of the petition.

(2) Where main insolvency proceedings have been opened in respect of the debtor in another Member State, paragraphs (a) and (b) of sub-rule (1) shall not apply to a petition by the liquidator in the main proceedings for the opening of secondary proceedings in respect of the debtor in accordance with Article 29 of the Insolvency Regulation.

(3) Where insolvency proceedings have been opened in another Member State, the affidavit verifying the petition shall exhibit a certified copy of the original decision appointing the liquidator or any other certificate of the court having jurisdiction (as referred to in Article 19 of the Insolvency Regulation) and if such decision or certificate is not in one of the official languages of the State, a translation of that decision or certificate into the Irish or the English language certified by a person competent and qualified for the purpose.

(4) The petition shall be verified by affidavit, which may be endorsed on the petition, and which shall verify each fact relied on in support of the statement made for the purposes of sub-rule (1)(d).

19A. (1) This rule applies only where, in the petitioning creditor’s belief, the centre of the debtor’s main interests is situated within the territory of a Member State other than the State.

(2) In a case to which this rule applies, the petition shall also:

(i) identify the place within the State where, in the petitioning creditor’s belief, the debtor has an establishment and the facts and grounds supporting that statement;

(ii) where main proceedings have not been opened in another Member State, contain a statement as to which of the conditions referred to in Article 3(4)(a) or Article 3(4)(b) of the Insolvency Regulation is met and the facts and grounds supporting that statement.

(3) The affidavit verifying the petition shall verify each fact relied on in support of each statement made for the purposes of sub-rule (2).

20. (1) A petition by a person other than the debtor shall be signed by the petitioner or, if more than one, by all the petitioners, unless the petitioners are partners, in which case one partner may sign on behalf of himself and the other partners. Any petitioner may sign the petition by his attorney duly authorised by power of attorney in that behalf.

(2) A petition by a creditor limited company or body corporate shall be sealed with the seal of the company or body corporate and signed by two directors or by one director and the secretary. Such seal and signature shall in all cases be attested.

21. On the presentation of a petition by a creditor, the petitioning creditor shall file in the proper office an affidavit in the Form No 12 proving his debt and the act of bankruptcy, provided that when a debt or any part thereof is in respect of money lent by a credit agreement to which either the Consumer Credit Act 1995 applies or the 2010 Regulations apply or interest or charges in connection therewith, the affidavit shall incorporate a statement showing in detail particulars showing compliance of the credit agreement as to content with the requirements of Part III of the Consumer Credit Act 1995 or, as the case may be, Part 4 of the 2010 Regulations, and provided also that where the act of bankruptcy relied on is non-compliance with a bankruptcy summons, it shall also incorporate a statement that the debt has not been secured or compounded.

22. Where a petitioning creditor is not known to the proper officer or a petition is not signed by a solicitor in addition to being signed by the petitioning creditor, it shall not be filed until the petitioner shall be identified to the satisfaction of the proper officer.

23. ^[13] In all cases the petitioning creditor shall indemnify the Official Assignee against such costs, fees and expenses as the Court may, upon the application of the Official Assignee, on notice to the petitioning creditor, direct.

24. The proper officer shall appoint the time at which the petition is to be heard. Notice of the time so appointed shall be written on the petition and sealed copy thereof. A sealed copy of the petition shall be taken out by the petitioner or his solicitor and may be used as if it were an original.

25. Every petition by a person other than the debtor shall be served, not less than seven days before the hearing of the petition, by delivering to the debtor personally a copy of such petition and by showing to the debtor at the time of such service the sealed original, or shall be served in such substituted manner as the Court may direct. The petitioner shall file in the proper office an affidavit of service of the petition not later than two clear days before the hearing.

B. Bankruptcy Petition by a Debtor

26. (1) ^[14] A debtor’s petition shall be in the Form No 13 and shall:

(a) contain an undertaking by the debtor to advertise notice of the adjudication in the manner directed by the Court and to bear the expenses of such advertisement;

(b) contain an undertaking by the debtor to lodge such sums, if any, as the Court may from time to time direct to cover the costs, fees and expenses incurred or to be incurred by the Official Assignee;

(d) where the Insolvency Regulation applies to the proceedings, contain a statement that, to the debtor’s knowledge, no insolvency proceedings have been opened in respect of the debtor in any Member State or Member States (other than the State), or that such insolvency proceedings have been opened and if so, whether those insolvency proceedings are main proceedings, secondary proceedings or territorial proceedings.

(2) Where insolvency proceedings have been opened in another Member State, the affidavit verifying the petition shall exhibit a certified copy of the original decision appointing the liquidator or any other certificate of the court having jurisdiction (as referred to in Article 19 of the Insolvency Regulation) and if such decision or certificate is not in one of the official languages of the State, a translation of that decision or certificate into the Irish or the English language certified by a person competent and qualified for the purpose.

(3) The petition shall be supported by an affidavit, which may be endorsed on the petition, which shall verify the petition and shall verify the facts supporting every statement made for the purposes of sub-rule (1)(d).

(4)^[15] The affidavit referred to in sub-rule (3) shall, in addition, contain the averment required by section 11(4) of the Act.”

26A. (1) This rule applies only where the centre of the debtor’s main interests is situated within the territory of a Member State other than the State.

(2) In a case to which this rule applies, the petition shall also:

(i) identify the place within the State where the debtor has an establishment and the facts and grounds supporting that statement;

(3) The affidavit verifying the petition shall verify the facts supporting every statement made for the purposes of sub-rule (2).

27.^[16] A petition of bankruptcy by a debtor shall be accompanied by and lodged together with a statement of affairs of the debtor in the Form No 23, with such modifications as are necessary, which shall be verified by the debtor, and the debtor shall comply with the requirements of rules 80 and 81 in respect of the statement of affairs.

C. General

28. The petitioner shall swear to the best of his knowledge and belief that the allegations in the petition are true.

29. (1) Upon the presentation of a petition by a creditor or a debtor the petitioner shall deposit with the Official Assignee the sum of €200^[17], and shall thereafter lodge such further sums, if any, as the Court may from time to time direct, to cover the costs, fees and expenses incurred or to be incurred by the Official Assignee, and no petition shall be received unless the receipt of the Official Assignee for the deposit payable on presentation of the petition is produced to the proper officer.

(2) The Official Assignee shall account for the money so deposited to the creditor or, as the case may be, to the debtor’s estate, and any sum so paid by a petitioning creditor shall be repaid to such creditor (except and so far as such deposit may be required by reason of insufficiency of assets for the payment of the costs, fees and expenses incurred by the Official Assignee) out of the proceeds of the estate in the same priority as his costs.

30. Every petition of bankruptcy (together with, in the case of a creditor’s petition, the original bankruptcy summons and the completed affidavit of service of the summons) shall be filed in the proper office.

31. The proper officer shall at the time of filing endorse on every petition and other document the date of the filing thereof and in cases of declarations of insolvency and petitions shall also endorse the hour of the day.

32. Upon the presentation of the petition the proper officer shall appoint the time for the hearing thereof and shall endorse on the petition the time appointed for such hearing and shall sign the same.

VII. Adjudication in bankruptcy

33. Where two or more petitions are presented against the same debtor, or against debtors being members of the same partnership, the petition which was first presented shall be entitled to be first heard. Where such first petition shall not have been proceeded with to adjudication or where the debtor shows cause against the adjudication thereunder or where delay will be avoided, any other petition may be proceeded with. If the Court shall make adjudication upon such last mentioned petition, all other petitions shall stand dismissed with such costs (if any) as the Court may allow, and a note of such dismissal shall be endorsed by the proper officer on each such petition.

34. No order of adjudication shall be made against a firm in the firm’s name, but it shall be made against the partners individually with the addition of the firm’s name.

35. The debt of the petitioning creditor which has been proved for the adjudication shall in all cases be deemed to be a debt proved and admitted in the bankruptcy, unless the Court shall otherwise order.

35A. (1) Where, on the hearing of a petition for adjudication, the Court is satisfied that main insolvency proceedings have previously been opened in a Member State other than the State, the Court may make an order of adjudication opening secondary proceedings.

(2) An adjudication order or order of adjudication opening secondary proceedings shall contain the appropriate recital included in Form No 15.

36. (1) The petitioning creditor or the Official Assignee may after adjudication make application to the Court, supported by affidavit, for the appointment of a receiver or manager in accordance with section 73 of the Act.

(2) Where cause is shown against the adjudication or where the funds realised by the receiver or manager are insufficient to discharge his costs, fees and expenses, the petitioning creditor shall pay such costs, fees and expenses to the receiver or manager as the Court may direct, and the Court shall decide any claim for damages arising out of his appointment, and may make such Order as it thinks fit.

37. (1) A receiver or manager of property or business of the debtor appointed by the Court shall submit his accounts (including a rental, if required) for examination to the Official Assignee, and for that purpose shall attend upon him at such reasonable times as he may require.

(2) The remuneration of a receiver or manager shall be under the direction of the Court, and no receiver or manager shall have any lien whatever for his remuneration on any money or property which may have come to his hands.

38. (1) Upon adjudication on the petition of a creditor, a copy of the order concerned, in the Form No 15, shall be served on the bankrupt by the Bankruptcy Inspector or any of his assistants.

(2) An affidavit of service of the copy order shall be sworn forthwith by the Bankruptcy Inspector, or his assistant as the case may be, and filed in the proper office.

39. (1) A person adjudicated bankrupt intending to show cause against the validity of the adjudication in accordance with section 16 of the Act shall within three days from the date of service of the copy order of adjudication, or such extended time as the Court may allow not exceeding fourteen days from the date of such service, file in the proper office notice in writing of his intention together with an affidavit containing the particulars referred to in sub-rule (2).

(2) The notice shall state which of the requirements of section 11(1) of the Act are alleged by the person adjudicated not to have been complied with, and the affidavit shall set out in detail the grounds on which he claims the adjudication to be invalid. The notice shall be in the Form No 16.

(3) Upon filing of the notice and affidavit the proper officer shall set the notice down for hearing before the Court, and shall endorse on the notice the time fixed for the hearing and shall date and sign it.

(4) A copy of the notice so endorsed shall, together with a copy of the affidavit, be served by the person showing cause upon the solicitor for the petitioning creditor, or upon the petitioning creditor if no solicitor is employed, and upon the Official Assignee.

40. After lodging such notice of his intention he shall, on application to the proper officer, and on payment for the same be furnished forthwith with copies of the proceedings on which the adjudication was founded.

41. If at the sitting of the Court to hear the cause against the validity of the adjudication the debtor shall not appear, or if having appeared he shall fail to show to the satisfaction of the Court that the requirements of section 11(1) of the Act or such of them as shall have been put in issue, have not been complied with, or unless the Court in accordance with section 16(2) of the Act shall adjourn the application the cause shown by the debtor shall be disallowed with such costs as the Court may order. If at such sitting any new evidence as to any of these matters shall be given, or any witness to any of such matters shall not be present for cross-examination (if required to attend) and further time shall be desired, the Court may, if it think the application reasonable, grant such further time as it may think fit.

42. ^[18] [….]

43. ^[19] From and after adjudication, the Official Assignee shall be at liberty to choose and appoint a solicitor to have carriage of the proceedings on his behalf and to advise him in the course of the proceedings.

44. After adjudication the petitioner or his solicitor shall at the request of the Official Assignee furnish to the Official Assignee all information which he may have relating to the trade dealings, affairs or property of the bankrupt, and produce to the Official Assignee any books of account and documents in his possession or control relating to the matters aforesaid.

VIII. Motions and practice

45. Every solicitor (not being a solicitor presenting a petition or a solicitor nominated by the Official Assignee to act on his behalf) nominated to act on behalf of any bankrupt or other person being a party to any motion or other proceeding in the bankruptcy, shall file in the proper office a notice of appointment or change of solicitor, as the case may be, in the Forms Nos 17 and 18 respectively.

46. A short note or statement of every motion of course shall be delivered to the proper officer at least two clear days before it is moved, specifying the matter in which and the party on whose behalf it is made, the nature of the application and the name of the solicitor or party applying.

47. Motions on notice shall be grounded on affidavit or other document or evidence stated in the notice of motion unless the Court in any particular case otherwise directs and such motions and affidavits shall be filed in the proper office.

48. Where any person other than the applicant is affected by the motion, no order shall be made except with the consent of that person duly shown to the Court, or upon proof that notice of the intended motion and copies of the supporting affidavits have been duly served upon that person; provided that the Court, if satisfied that the delay caused by proceedings in the ordinary way would or might entail serious mischief, may make any order ex parte on such terms as to costs and otherwise, and subject to such undertaking (if any) as the Court thinks just, and any person affected by such order may move to set it aside.

49. (1) Two copies of the notice shall be filed in the proper office by the solicitor or person serving it, and the notice shall specify a date for hearing not less than two clear days after the date of service of the notice unless the Court otherwise directs; provided that, where the notice requires to be served personally, it shall be served not less than four clear days before the hearing of the motion.

(2) A copy of the notice shall be served forthwith upon the Official Assignee, together with copies of the affidavit or affidavits or other documents grounding the motion.

(3) Any further affidavit or affidavits in reply shall be filed in the proper office and copies thereof shall be served forthwith upon the Official Assignee.

IX. Proceedings by charge and discharge

50. An application to the Court to establish or set aside a disputed document, dealing or transaction relating to property of the bankrupt may, unless the Court otherwise directs, be made and dealt with by charge and discharge.

51. Every charge shall be filed in the proper office and notice of such lodgment and a copy of the charge shall be served upon the person to be made liable or affected thereby.

52. Any person served with such notice and copy of a charge shall have the period of twenty-one days and such further time (if any) as shall be allowed by the Court to file his discharge thereto, and in default of a discharge being filed within such period the charge shall be set down for hearing before the Court upon notice to such person. Verification by affidavit of a charge or discharge shall not be required.

53. When a discharge shall be filed, notice of the filing thereof and a copy of such discharge shall be forthwith served on the chargeant, and the chargeant and dischargeant shall during the period of ten days after such service, be at liberty to file such affidavits as they may wish, notice of such filing being at the same time served and they may within the same period of ten days serve notice of intention to adduce oral evidence either in addition to or in substitution for affidavits. The witnesses whom it is proposed to examine orally shall be named in the notice.

54. After the expiration of the said period of ten days either party may apply to the Court by motion on notice for directions as to any further or other evidence.

55. After the expiration of the said period of ten days the chargeant, or, if he shall fail to do so, the dischargeant, may set down the charge and discharge for hearing before the Court.

56. The chargeant and dischargeant may respectively by notice require the production at the hearing of the charge of any books, papers and writing, and no evidence shall be received on the hearing of a charge and discharge without notice thereof to the opposite party, unless the Court shall in any case otherwise permit.

57. This Order shall not preclude the assignees from applying to the Court for the examination of any witness pending the hearing of the charge.

58. When a charge is filed to establish any deed or document relating to the property of a bankrupt or arranging debtor, or any dealing or transaction respecting such property, and the assignees propose to impeach or set aside such deed, document, dealing, or transaction as being fraudulent and void, or void against the assignees and creditors, on any ground whatsoever, it shall not be necessary to file any charge for such purpose but the case of the assignees may be set up by the discharge to the charge and shall be dealt with on the hearing thereof.

X. Sale of property

59. (1) In a sale in a bankruptcy or in a vesting arrangement by auction or by tender it shall be at the discretion of the Official Assignee as to whether or not a reserve price shall be fixed.

(2) The Official Assignee shall be at liberty to retain an auctioneer or valuer, independently of the auctioneer having carriage of the sale, to advise him as to value in a case where he proposes to fix a reserve price.

(3) The amount of a reserve price fixed by the Official Assignee shall not be disclosed until after the completion of bidding for the property save with the prior consent of the Official Assignee or by direction of the Court.

(4) In the case of a sale by auction, the auctioneer shall as soon as possible after the auction certify to the Official Assignee the result of the auction. Where the Official Assignee has not retained an auctioneer or valuer in pursuance of sub-rule (2) of this rule, the auctioneer shall give his opinion as to the value of the property.

60. When an Order has been made by the Court for the sale of any land or any policies of assurance, or where the Official Assignee otherwise requires, the solicitor having carriage of sale shall prepare and lodge with the Official Assignee a statement of title and conditions of sale. The Official Assignee shall settle the statement of title and conditions of sale and may direct such advertisements and give notice to such persons (if any) as he thinks necessary. He may also direct such searches and require the production of such evidence as he thinks necessary. The Official Assignee shall be at liberty in any case to direct that the statement of title and conditions of sale shall be settled by Counsel.

61. (1) An application for sale by a person claiming to be a mortgagee of, or to have any charge or lien upon, any property of a bankrupt or arranging debtor who vests his property may be made by notice of motion grounded on an affidavit or affidavits.

(2) The notice shall set forth particulars of the amount claimed for principal and interest and pray that the property be sold under the direction of the Court.

(3) The applicant shall state on affidavit whether he holds any other security for that amount whether from the debtor or any other person, and the particulars of the security.

(4) On every application under this rule the applicant shall satisfy the Court by evidence whether the property is or is not subject to any other incumbrances and shall show that searches have been made for incumbrances and that every other incumbrancer has had notice of the application and consents to the sale.

(5) Upon the hearing of the motion the Court shall proceed to enquire whether such person is such mortgagee, or has such charge or lien and for what consideration and under what circumstances, and if no sufficient objection shall appear to the title of such person to the sum claimed by him, the Court may declare the claim of such person to be proved and established subject to the taking of such accounts and making of such enquiries, if any, by the Official Assignee, as the Court may direct.

(6) The Court may order the property to be sold in such manner and subject to such conditions (if any) as it may deem fit.

(7) In cases in which no application is made by a mortgagee under this rule, the Court may order that any part of the bankrupt’s or arranging debtor’s estate and effects which is subject to any mortgage, charge or lien shall be sold subject to such mortgage, charge or lien, and the same shall be sold accordingly. No Order shall be made under this rule without notice to the person entitled to such mortgage, charge or lien.

(8) Every application under this rule shall be made on notice to the Official Assignee and the Court may adjourn the application to enable notice to be given to such other person or persons as it may direct.

XI. Discovery

62. Any party to any proceeding under this Order may with the leave of the Court deliver interrogatories to or obtain discovery of documents from any other party to such proceeding, and the provisions of Order 31 shall apply as far as practicable.

XII. Persons under Disability

63. The Court shall have power to appoint a next friend and also a guardian ad litem to any minor or other person under disability who is a party to any proceedings under this Order, and the provisions of Order 15 Part II shall apply as far as practicable.

XIII. Sittings, Advertisements and Proof of Debts

64. (1) ^[20] Notice of the adjudication shall be given as required by section 17(2) of the Act in the Form No. 19.

(2) Notice of the filing of the documents referred to in section 82(1) of the Act and of the sitting for distribution shall be advertised by the Official Assignee in Iris Oifigiúil and in such newspaper or newspapers (if any) as he considers appropriate. The notice shall be in the Form No 20.

(3) Every insertion of an advertisement of notice of a sitting of the Court shall be vouched with the proper officer by the person having the duty of inserting the advertisement at least two clear days before the sitting at the latest.

65. (1) The Official Assignee or a trustee may give notice, by advertisement in Iris Oifigiúil and otherwise as he shall think fit, of the fixing of a time within which proofs of debt shall be sent to him. Such advertisement shall be in the Form No 21.

(2) In addition to advertisement, such notice shall be given by the Official Assignee or trustee to all the creditors entered in the bankrupt’s statement of affairs or any other creditor of whom the Official Assignee or trustee is aware, who shall not already have lodged proofs or claims with him.

(3) In the case of any creditor mentioned in sub-rule (2) who has his habitual residence, domicile or registered office in a Member State other than the State, such notice, entitled as required by Article 42(1) of the Insolvency Regulation, shall be in the Form No 21A and shall in particular include (i) the date by which proofs of debt are to be submitted, (ii) a statement that a proof submitted after that date shall not be allowed except by order of the Court, (iii) a statement that creditors whose claims are preferential or secured in rem need to lodge their claims, (iv) a statement of the name and address of the Official Assignee for the purpose of lodging claims and a summary or copy of the provisions of the First Schedule to the Act.

(4) The notice referred to in sub-rules (2) and (3) shall be given by prepaid ordinary post to the creditors at the address set forth in the statement or at such address as may be known to the Official Assignee or trustee (or in the case of the liquidator in main proceedings opened in a Member State other than the State, by the means specified in rule 1(3)) not later than ten days before the expiration of the time so fixed.

66. (1) Written confirmation of the decision of the Official Assignee or trustee in regard to a claim in accordance with paragraph 23(d) of the First Schedule to the Act shall be delivered by the means specified in rule 65(4) to the creditor at the address furnished in his proof of debt.

(2) The creditor may if aggrieved by the decision of the Official Assignee or trustee, within fourteen days from the date of posting, appeal to the Court by notice of motion to vary or reverse the same.

67. ^[21] An application to the Court for confirmation of the appointment of a creditors’ assignee under section 18(1)(b)of the Act shall be by motion on notice to the Official Assignee.

68. An affidavit of debt, when required, shall be in the Form No 12.

XIV. Authority to Vote

69. (1) The instrument appointing a proxy shall be in writing under the hand of the creditor, or if such creditor is a corporation or company under the hand of the secretary or other person duly authorised by the corporation or company and shall be in the Form No 22 and (unless it is otherwise expressly stated therein) shall be deemed and allowed as an authority to the appointee of the creditor to act and vote for him and on his behalf at all sittings and meetings of creditors or adjournments thereof.

(2) The instrument shall be filed in the proper office at least two clear days before the sitting or meeting at which the proxy is to attend.

XV. Evidence

70. Any affidavit to be used in any matter of bankruptcy or arrangement or proceedings under Part VI of the Act may be sworn before the Official Assignee or the proper officer.

71. A subpoena for the attendance of a witness at any sitting or trial shall be issued by the proper officer at the instance of the assignees, a creditor, a debtor, or any party, with or without a clause requiring the production of books, deeds, papers and writings in his possession or control, and in such subpoena the name of only one witness shall be inserted. A subpoena may be issued in blank as to the name of the witness only.

72. A sealed copy of the subpoena shall be served personally on the witness within a reasonable time before the time of the return thereof, and service of the subpoena shall where required be proved by affidavit.

73. Wherever a witness has made an affidavit or deposition in support of any application or proceeding in the Court, any party to such application or proceeding may by notice require the attendance of such witness for cross-examination.

74. An order to read evidence taken in another proceeding in the High Court shall not be necessary, but such evidence, saving all just exceptions, may be used on ex parte applications by leave of the Judge to be obtained at the time of making any such application, and in any other case upon the party desiring to use such evidence giving two days previous notice to the other parties of his intention to read such evidence.

75. The Court may in any matter limit the number of witnesses to be allowed on taxation of costs. The Court may allow the expenses of witnesses even though such witnesses have not been examined.

76. (1) Any person wishing to require the attendance of the Official Assignee or any other officer serving in the office of the Official Assignee at any court or place to give evidence in their official capacity or to produce any records in their custody, shall first apply to the Judge for liberty to do so. Where the Judge permits the attendance of any such officer to give evidence or to produce records, that officer shall be entitled to require that the person desiring his attendance shall deposit with him a sufficient sum of money to answer his just fees, charges and expenses, in respect of such attendance, and undertake to pay any further just fees, charges and expenses which may not be fully answered by such deposit.

(2) A summons to a bankrupt or any other person under section 21 of the Act to attend before the Court shall be in the Form No 39.

(3) A warrant for the arrest of an absconding bankrupt under section 23 of the Act and for his production before the Court shall be in the Form No 40.

(4) A warrant for the arrest of a bankrupt or any other person under section 23(2) or (3) of the Act shall be in the Form No 41.

(5) A warrant of committal under section 24 of the Act shall be in the Form No 42, Form No 43 or Form No 44 as the case may be.

(6) A warrant to direct the production of a bankrupt or any other person before the Court under section 25 of the Act shall be in the Form No 45.

(7) A warrant of seizure issued under section 27 of the Act shall be in the Form No 46.

(8) A search warrant issued under section 28 of the Act shall be in the Form No 47.

XVI. Execution

77. Order 42 shall so far as practicable apply in bankruptcy and arrangement proceedings and in proceedings under Part VI of the Act save that:

(a) execution orders and orders in aid of execution orders shall be issued and sealed by the proper officer,

(b) praecipes shall be filed in the proper office,

(c) orders when executed and returns and other documents relating to the same which are required to be filed shall be filed in the proper office.

XVII. Absconding Debtor

78. Where a debtor is arrested in pursuance of a warrant issued under section 9 of the Act he shall be brought before the next sitting of the Court and shall be safely kept until such sitting by being lodged in the prison specified in the warrant of arrest in the Form No 38.

XVIII. Bankrupt’s Remuneration and Superannuation

79. Where the Official Assignee intends to apply to the Court for an Order for the payment to the Official Assignee of all or part of the salary, income, emolument or pension of a bankrupt, notice shall be given to the bankrupt of such intention, and of the time and place fixed for the hearing of the application, and the bankrupt shall be at liberty to attend and show cause against an Order being made on the application.

XIX.^[22] The Statement of Affairs

80.^[23] (1) ^[24] A statement of affairs filed by a debtor under section 11(5) or for the purposes of section 14(2) of the Act shall be in the Form No. 23, with such modifications as are necessary, and shall particularise those affairs (including the assets and liabilities of the debtor) as of the following dates:

(a) where filed under section 11(5) of the Act, as of the date of presentation of the petition and

(b) where filed for the purposes of section 14(2) of the Act, as such date as the Court may direct.

(2) A statement of affairs filed by a debtor under section 11(5) or for the purposes of section 14(2) of the Act shall be in the Form No 23, with such modifications as are necessary, and shall particularise those affairs (including the assets and liabilities of the debtor) as of the date of presentation of the petition.

(3) Where a debtor has, prior to adjudication as a bankrupt, filed a statement of affairs under section 11(5) or for the purposes of section 14(2) of the Act, the debtor may, on notice to the Official Assignee, apply to the Court for a direction dispensing with the requirement in section 19(c) of the Act to file, as a bankrupt, a statement of affairs.

(4) ^[25] Where the Court has given a direction referred to in sub-rule (3), the statement of affairs filed by the debtor shall, for the purpose of this Order, be treated as his statement of affairs as a bankrupt.

(5) Unless the Court otherwise directs, the bankrupt shall:

(a) in the case of an adjudication to which section 14 of the Act applies, not later than 14 days after service on the bankrupt of the copy order of adjudication, or

(b) in the case of an adjudication to which section 15 of the Act applies, not later than seven days after the making of the order of adjudication,

lodge with the Official Assignee his statement of affairs in the Form No 23 and the Official Assignee shall examine same so as to ascertain whether it be complete, and shall refuse to stamp same, and the bankrupt shall not file same, until presented to the Official Assignee complete, unless the Court shall otherwise direct.

(6) Every statement of affairs shall be verified on oath, complete, regularly paged, and signed by the debtor on each page, with all the columns and blanks accurately filled up.

81. The bankrupt shall, in addition to filing the statement of affairs in the Central Office, thereupon file in the proper office a duplicate of his said statement of affairs duly stamped by the Official Assignee. The proper officer shall thereupon transmit a true copy of the same to the Official Assignee. When the bankrupt shall be entitled to any lands or tenements in the occupation of tenants the statement of affairs (unless a receiver has been appointed over such lands and a rental lodged by him) shall contain a rental setting forth the denominations, head rent (if any), tenants’ names and addresses, tenure, gale days, annual or other rents and the amount of rent due to the gale day next preceding the bankruptcy, or such rental in duplicate duly verified shall be filed at the same time as the statement of affairs. If a receiver has been appointed over the lands and a rental lodged by him the statement of affairs shall contain a reference to such rental and the proceedings wherein the same has been lodged.

XX. Creditors’ Assignee

82. No creditors’ assignee shall retain in his possession or custody any money whatsoever belonging to the estate of the bankrupt and if any such moneys should be paid to or be received by the creditors’ assignee he shall, subject to the Insolvency Regulation, forthwith pay or transmit the same to the Official Assignee in the matter, or lodge same in Court to the credit of the Official Assignee and the particular estate, and should he neglect to do so, he shall be charged by the Court with interest thereon at the rate of twenty per cent, per annum for such time as he shall have so retained the same.

XXI. Composition after Bankruptcy

83. The bankrupt shall be available to attend the meeting called under section 39 of the Act. The notice to be advertised and sent to creditors under section 39(2) shall be in the Form No 24. The notice shall state that the bankrupt will be available to attend the meeting and that creditors are entitled to obtain from the bankrupt, free of charge, a copy of his statement of affairs. In addition to advertisement in accordance with section 39(2) of the Act the notice shall be advertised in such newspaper or newspapers as the proper officer may direct.

84. The offer of composition shall be endorsed upon the bankrupt’s statement of affairs and a copy of the statement of affairs be furnished by the bankrupt free of charge to any creditor requesting the same.

85. The proper officer shall fix the date on which the meeting called under section 39 shall be held before the Judge. The proper officer shall fix such a date as would enable the Official Assignee prior to the meeting to fix a time for the sending to him of proofs of debt and to ascertain the bankrupt’s liabilities, unless this has already been done.

86. An application to the Court for a discharge from bankruptcy following the approval of an offer of composition shall not be made until a report shall have been obtained by the bankrupt from the Official Assignee that all costs ordered by the Court and all preferential debts have been paid and that the composition agreed to be accepted has been paid to all the creditors entitled thereto, or has been lodged with the Official Assignee for such of the creditors as cannot be found or who may have declined to receive the same. The report shall be in the Form No 25.

87. Where the composition offered shall not be accepted by the creditors, or when the Court shall have refused to discharge the adjudication and shall have ordered the bankruptcy to continue, or when the bankrupt shall have failed to pay the composition agreed upon, or the Court so directs, any debt proved and admitted at the meeting or by the Official Assignee may afterwards be expunged either wholly or in part upon such notice to the creditor as the Court directs.

XXII. Arrangements under the Control of the Court

88. - 99.^[26] [ • ]

XXIII. Consent of Surety

100. ^[27] When the proposal of a bankrupt or an arranging debtor for the future payment or compromise of his debts involves any other person becoming surety for the payment or compromise, the consent and undertaking in writing of that person to the proposal shall be in the Form No 31 and shall be filed at or before the meeting called under section 39(1) of the Act. Such consent and undertaking shall be executed in the presence of the Official Assignee at his office, and the same shall not be filed until the surety shall be identified to the satisfaction of the Official Assignee.

XXIV. Winding up by a Trustee

A. General

101.^[28] The provisions of the preceding rules of this Order shall apply, with any necessary modifications, in relation to the winding up of the property of a bankrupt by a trustee and a committee of inspection as they apply in relation to the administration of such property by the Official Assignee and “trustee” shall be substituted for “Official Assignee” in such provisions where appropriate.

B. Change from Official Assignee to Trustee

102. (1) ^[29] The Official Assignee or any creditor whose debt has been admitted may apply to the Court by motion for liberty to put a proposal to the creditors of the bankrupt at a meeting of such creditors, that the estate of the bankrupt be wound up by a trustee and a committee of inspection, and for directions as to the convening of such meeting.

(2) Such application shall be grounded upon affidavit setting forth the grounds upon which it is made, particulars of the person to be nominated to act as trustee, and exhibiting the consent of such person so to act.

103. ^[30] Where a resolution to appoint a trustee and a committee of inspection has been adopted at a meeting of creditors in accordance with section 110 of the Act, an application to the Court to order that the property of the bankrupt be wound up by the trustee and committee of inspection shall be made by motion on notice to the Official Assignee.

104. (1) At the time of making an order that the property of a bankrupt be wound up by a trustee and a committee of inspection, or at any time thereafter upon the application of the Official Assignee or the trustee, the Court may order to be paid out of the bankrupt’s estate to the Official Assignee such costs, fees and expenses incurred by the Official Assignee as the Court may allow.

(2) In addition to the matters provided for in section 112(3)(a) to (d) of the Act, the Court may require a trustee to give security in accordance with rule 17.

C. Proof of Debts

105. Where a trustee has been appointed by the creditors the proofs of debts that have been received by the Official Assignee shall be given over to the trustee, but the Official Assignee shall make and file a list of such proofs in the proceedings.

D. Regulations as Trustees

106. Notice of the appointment of a trustee shall be advertised by the trustee forthwith in Iris Oifigiúil and in at least one daily newspaper in circulation in the area where the bankrupt resides. Such notice shall be in the Form No 32.

107. When a trustee desires to apply to the Court for directions in relation to any particular matter arising under the bankruptcy, he shall file his application in the proper office and the Court shall then hear the application or fix a day for its hearing and direct the trustee to apply by motion on notice to any other person.

108. Where the trustee is an auctioneer he shall not by himself or any partner act as such in the sale of any of the property vested in him, except with the consent of the committee of inspection and upon such terms as it may think fit.

109. The trustee shall, as soon as may be, take possession of the deeds, books and documents of the bankrupt, and all other property capable of manual delivery.

110. The trustee shall keep the following:

(a) a book, to be entitled “the Record Book” in which he shall keep a record of all minutes, proceedings had, and resolutions passed at any meeting of the committee of inspection, of all proofs of debt received, of the proceedings had at any sitting of the Court at which he attends, and of all other matters in the bankruptcy necessary to give a correct view of the management of the bankrupt’s property.

(b) a file or files on which he shall place copies of orders made by the Court, the bankrupt’s statement of affairs, all proofs of debt received, and any correspondence or other documents in the bankruptcy.

(c) a book, to be entitled the “Estate Book” according to the form of any ordinary debtor and creditor account in which he shall enter from day to day the receipts and payments made by him.

111. The trustee shall submit the books and file (or files) referred to in the last preceding rule together with a copy of the Estate Book to the committee of inspection at each meeting of the committee and the committee of inspection, the proper officer, or any creditor may inspect the books and file (or files) at all reasonable times.

112. (1) The trustee shall submit the Estate Book together with a copy thereof to the committee of inspection every three months for auditing. The committee shall audit the Estate Book and may for that purpose call upon the Trustee to produce any records, vouchers or other documents. The committee shall certify in the Estate Book under their hands the day on which the said book was audited and shall in like manner certify the said copy.

(2) The trustee shall forthwith after the said audit shall have been held, transmit to the proper officer the copy so certified. The proper officer shall inquire into any misfeasance, neglect or omission which may appear from the said copy or from the certificate, and if not satisfied with the explanation given he shall report thereon to the Court. A copy of any such report of the proper officer shall be sent to the trustee together with a notice of the day appointed for the hearing before the Court seven days previously to such day.

113. The Court may, upon cause shown, remove any trustee.

114. If any vacancy should occur in the office of trustee by death, resignation or otherwise, the vacancy shall be filled by a resolution of at least three-fifths in number and value of the creditors voting at a general meeting of the creditors for the purpose of filling such vacancy. Such a meeting may be convened by the Court on the application of any creditor, or the Official Assignee, or any person prejudiced by the failure to fill such vacancy.

115. A trustee desirous of resigning or obtaining his release shall apply to the proper officer to fix the time and place upon which he may make application to the Court for such release, and upon such time being fixed he shall summon a meeting of the creditors to consider such application stating therein the time and place at which the application to the Court will be made. Notice of the meeting of creditors shall be given to the bankrupt. The creditors assembled at the meeting may express their opinion as to the conduct of the trustee and they, or any of them, may appear before the Court, and oppose the application of the trustee.

116. Where a trustee shall resign or be removed from his office he shall within ten days thereafter lodge with the proper officer an account in writing verified upon oath showing what he has done while trustee and shall duly account for all moneys or property of the bankrupt.

117. Upon a trustee resigning, or being released or removed from his office, he shall deliver over upon oath to the new trustee (if any) or to the proper officer all books kept by him, and all other books, documents, papers, and accounts in his possession in any way relating to the office of trustee.

118. All unclaimed dividends and all money unclaimed, being part of a bankrupt’s estate shall, after the expiration of the period of twelve months from the date of the order for payment of the dividend, or from the time at which any other money unclaimed shall have come to the hands of the trustee, immediately be accounted for and remitted to the Official Assignee by the trustee, and the Official Assignee shall thereupon pay such money into the Official Assignee - Unclaimed Dividend Account.

119. The proper officer shall take cognizance of the conduct of trustees and in the event of any trustee not faithfully performing his duties and not duly observing all the requirements imposed on him by statute rules or otherwise relative to the performance of his duties or in the event of any complaint being made to the proper officer by any creditor or the bankrupt in regard thereto, he shall inquire into the same, and if not satisfied with the explanation given he shall report thereon to the Court; and the Court after hearing the trustee may remove him from his office or make such order in the matter as the justice of the case may require.

120. If in any case the proper officer shall report to the Court under the last preceding rule, a copy of the report shall be sent to the trustee together with a notice of the day appointed for the hearing before the Court seven days previously to such day. The Court may order that the costs of a trustee in relation to such hearing be paid or borne as the Court shall direct.

E. The Committee of Inspection

121. The committee of inspection shall not be competent to act for any purpose under Part V of the Act unless there are present or represented a quorum of at least three of its members, or all of its members if their number does not exceed three. A resolution of the committee shall be passed unanimously or by a majority in number of the members present at the meeting.

122. A meeting of the committee of inspection may be summoned by the trustee or by any member of the committee, by the transmission to each member at such address as may be known to the trustee, not less than seven days before the meeting, of a notice specifying the time and place at which it is to be held and the purpose for which it is summoned. Where a meeting is summoned by a member of the committee of inspection, that member shall transmit to the trustee notice of the meeting in like manner.

123. Any member of the committee of inspection may resign his office by notice in writing signed by him and delivered to the trustee. Any member of the committee may be removed by a resolution of at least three-fifths in number and value of the creditors voting at a meeting of the creditors convened for that purpose.

124. Where a creditor desires a meeting of creditors to be held to remove a member of the committee of inspection, he shall apply to a member of the committee of inspection to specially summon a meeting for that purpose and for the purpose of appointing another person to fill the office by sending a notice to each creditor seven days before the meeting is to be held; and where such member refuses to summon a meeting, the creditor may apply to the Court upon an affidavit stating specifically the facts which would appear to justify the removal of such member of the committee of inspection, and the Court may direct a meeting to be held before the proper officer accordingly whereof the notice aforesaid shall be given, or if it think fit may direct notice to be given to the member of the committee to show cause why the Court should not remove him.

125. On any vacancy occurring in the office of a member of the committee of inspection by removal, death, resignation or otherwise, the trustee shall convene a meeting of the creditors for the purpose of filling up such vacancy, by transmitting to each creditor at the address given by him in his proof, or at any other such address as may be known to the trustee, not less than seven days before the meeting, a notice specifying the time and place at which the meeting is to be held and the purpose for which it is summoned. The vacancy shall be filled on a resolution of at least three-fifths in number and value of the creditors voting at the meeting.

XXV. Estates of Persons Dying Insolvent

126. (1) A petition for the administration of the estate of a deceased person under section 115 of the Act shall be in the Form No 33 and shall:

(a) contain:

(i) statements that the Insolvency Regulation applies to the proceedings and that the deceased person’s centre of main interests at the time of death was situated in the State and the facts and grounds supporting each statement; or

(ii) statements that the Insolvency Regulation applies to the proceedings, that the deceased person’s centre of main interests at the time of death was situated in another specified Member State and that the deceased person at the time of death had an establishment within the State and the facts and grounds supporting each statement; or

(iii) a statement that the Insolvency Regulation does not apply to the proceedings and the facts and grounds supporting that statement, and in such case, shall contain a statement that the deceased person was domiciled in the State or that, within a year before the date of the presentation of the petition, he or she ordinarily resided or had a dwellinghouse or place of business in the State, or carried on business in the State personally or by means of an agent or manager, or that was within that period a member of a partnership which carried on business in the State by means of a partner, agent or manager; and

(b) where the Insolvency Regulation applies to the proceedings, contain a statement that, to the petitioner’s knowledge, no insolvency proceedings have been opened in respect of the deceased person in any Member State or Member States (other than the State), or that such insolvency proceedings have been opened and if so, whether those insolvency proceedings are main proceedings, secondary proceedings or territorial proceedings.

(3) The petition shall be supported by an affidavit endorsed on the petition which shall verify the petition and shall set out and verify the facts supporting every statement made for the purposes of sub-rule (1).

(4) Where the centre of the deceased person’s main interests was at the time of death situated within the territory of a Member State other than the State, the petition shall also:

(i) identify the Member State within the territory of which the centre of the deceased person’s main interests at the time of death was situated and the facts and grounds supporting that statement;

(ii) identify the place within the State where the deceased person had an establishment at the time of death and the facts and grounds supporting that statement;

(iii) where main proceedings have not been opened in another Member State, contain a statement as to which of the conditions referred to in Article 3(4)(a) or Article 3(4)(b) of the Insolvency Regulation is met and the facts and grounds supporting that statement.

(5) The petition referred to in sub-rule (1) shall be verified by affidavit. The affidavit shall set out and verify the facts supporting every statement made for the purposes of sub-rules (2) and (4).

(6) Upon the presentation of a petition referred to in sub-rule (1) the petitioner shall deposit with the Official Assignee the sum of €650, and shall thereafter lodge such further sums, if any, as the Court may from time to time direct, to cover the costs, fees and expenses incurred or to be incurred by the Official Assignee, and no petition shall be received unless the receipt of the Official Assignee for the deposit payable on presentation of the petition is produced to the proper officer.

(7) The Official Assignee shall account for the money so deposited to the petitioner, and any sum so paid by a petitioner shall be repaid to such petitioner (except and so far as such deposit may be required by reason of insufficiency of assets for the payment of the costs, fees and expenses incurred by the Official Assignee) out of the proceeds of the estate in the same priority as his costs.

127. A petition referred to in rule 126 shall be supported by the affidavit of the petitioner setting forth the grounds upon which it is alleged that the estate will be insufficient for the payment of the deceased’s debts.

128. Upon the presentation of a petition by a creditor, the creditor shall file an affidavit in the Form No 12 proving his debt, provided that when the debt of a petitioning creditor or any part thereof is in respect of money lent pursuant to a credit agreement to which either the Consumer Credit Act 1995 applies or the 2010 Regulations apply, or interest or charges in connection with such an agreement, the affidavit shall contain:

(a) a statement of the date when a copy of the credit agreement was handed, delivered or sent to the borrower in accordance with section 30 of the Consumer Credit Act 1995 or, as the case may be, received by the borrower in accordance with Regulation 13(2) of the 2010 Regulations, on which a copy of the note or memorandum in writing of the contract made pursuant to section 11 of the Moneylenders Act 1933, was delivered or sent to the borrower and

(b) particulars showing compliance of the credit agreement as to content with the requirements of Part III of the Consumer Credit Act 1995 or, as the case may be, Part 4 of the 2010 Regulations.

129. Upon the presentation of a petition by a personal representative, the personal representative shall produce to the proper officer the grant of probate or of letters of administration, as the case may be, together with the Inland Revenue Affidavit relating to the estate.

130. Where a petition has been presented by a creditor it shall be served on the personal representative of the deceased, or where there is no known personal representative, on such person and in such manner as the Court may think fit.

131. The provisions of these rules regarding a bankruptcy petition shall as far as applicable and with appropriate modifications, apply to a petition under section 115 of the Act.

132. ^[31] The provisions of these rules relating to adjudication in Bankruptcy and the procedure to be followed thereafter shall, as far as applicable and with appropriate modifications, apply to an order made for the administration of an insolvent deceased’s estate. Notice of the making of such order shall be in the Form No 34.

133. (1) When an administration order has been made the personal representative or such person as the Court may direct shall file in the proper office

(a) a statement of affairs relating to the deceased’s estate in the form prescribed by these Rules for bankrupts with such variation as may be required, and

(b) an account of his dealings with the deceased’s estate in such form and verified in such manner as the Official Assignee may require,

and shall thereupon lodge with the Official Assignee a duplicate of the said documents duly stamped by the proper officer with the date of filing.

(2) The personal representative shall also furnish to the Official Assignee such other particulars of the affairs of the deceased as he may from time to time require.

134. Where an order has been made in the Circuit Court under section 115(4) of the Act for the transfer to the Court of proceedings for the administration of the estate of a deceased debtor the person on whose application such order was made shall forthwith apply to the Court on notice to the Official Assignee for an administration order. The Official Assignee may at that hearing before the Court apply for such provision to be made by the applicant or from funds forming part of the estate for the costs, fees and expenses to be incurred by the Official Assignee.

XXVI. Distribution of Estate

135. Notice of a sitting of the Court to distribute the proceeds of the sale of any land which is the subject of any mortgage, charge or lien shall be sent by post by the party having carriage of the sale at least ten days before the sitting to every incumbrancer and to the Official Assignee when he has not carriage of the sale.

136.^[32] An Account called the “Bankruptcy Dividend Account” shall be kept in the Bank in the name of the Official Assignee. After an Order has been made in any matter of bankruptcy or arrangement for payment of a dividend or cash composition, the Official Assignee (or in his absence the Deputy Official Assignee) shall transmit to the Bank an authority in writing or by electronic means to transfer from the estate account (hereinafter mentioned) of such matter to the credit of the Bankruptcy Dividend Account the total amount of such dividend or cash composition and to pay the creditors, to whom the dividend or cash composition is payable, the respective amounts to which the said creditors are entitled as approved by the Court, and to charge the amounts so paid to the Bankruptcy Dividend Account.

137. - 140.^[33] [ • ]

141. (1)^[34] The Official Assignee shall, immediately after the expiration of six months from the date of issue of any payments payable on the order for distribution of the estate or any part thereof cause a list of unpaid dividends or cash compositions, and of all other money unclaimed, to be prepared. The Official Assignee shall direct such notices to be served relative thereto as he may think fit, and when satisfied that the dividends, compositions or other sums in such list are properly transferable to the Official Assignee—Unclaimed Dividend Account shall give directions for the immediate transfer of the same.

(2) Any sum drawn by the Official Assignee out of the said account in accordance with section 61(3)(k) of the Act shall thereupon be lodged by him to the credit of the relevant estate account.

142.^[35] (1) When, after an authority for payment out of the Bankruptcy Dividend Account has been transmitted to the Bank, any debt comprised therein shall be expunged or reduced or a stay shall be placed upon the payment of any dividend or composition specified in such authority, the Official Assignee shall thereupon issue to the Bank an instruction by electronic means or otherwise, cancelling the authority of the Bank to pay the amount of the dividend or composition upon the debt expunged or reduced or upon which the stay has been placed, and shall issue an instruction to the Bank by electronic means or otherwise to transfer such amount from the Bankruptcy Dividend Account to the account of the estate out of which such dividend or composition is payable, and the amount so transferred shall be brought to the credit of the said estate. After receipt of such direction as aforesaid the Bank shall not make payment of the amount therein specified on foot of the original authority.

(2) When, after any such authority as aforesaid has been lodged in the Bank, the right to receive payment of a sum therein specified has been transferred to or devolves upon a person (hereinafter called “the new payee”) other than the person named in the authority as the person entitled to receive payment of such sum, the Official Assignee shall thereupon issue an instruction to the Bank by electronic means or otherwise cancelling the original authority in so far as it refers to such sum and shall issue a new instruction to the Bank to make payment of the said sum to the new payee and the Bank shall not, after receipt of such instruction, make payment of all or any part of the said sum to the person named in the original authority as entitled to receive payment thereof. The Official Assignee may, however, in any case require that application for payment be made to the Court.

143. Payment from the Bankruptcy Dividend Account to the Official Assignee — Unclaimed Dividend Account or to an estate account shall be made in the manner provided by rule 150 for payments out of an estate account.

XXVII. Official Assignee

144. - 155.^[36] [ • ]

XXVIII. Unclaimed Dividend Account

156. - 158.^[37] [ • ]

XXIX. Records

159. The following books according to the forms heretofore in use in the Court or as may be sanctioned by the Judge shall be kept by the proper officer:

(a) Indices of Bankruptcies, Arrangements and Insolvent Deceaseds,

(b) Bankruptcy Petition Book,

(d) Insolvent Deceaseds Petition Book,

(e) Register of Bankruptcy Summonses,

(f) Day List of all Sittings appointed before the Court,

(g) Office Directions Book,

(h) Registrar’s Minute Book, and

(i) such other books and records as shall from time to time be prescribed by the Judge.

160. (1)^[38] The following records, in electronic format or otherwise, shall be kept by the Official Assignee:

(a) a record of debtors, containing a record of debts due to each estate and amounts recovered,

(b) a record of creditors, containing a record of the claims on each estate,

(d) a bankruptcy estate file, containing a debtor and creditor account of each estate,

(e) copies of all deeds, securities and valuables delivered to him, and

(f) copies of all books and papers delivered to him.

(2) The Official Assignee shall maintain the register required by section 140A(1) of the Act in the form from time to time prescribed by the Judge.

XXX. Discharge and Annulment

161. ^[39] An application for a certificate of the Official Assignee required by section 85(3G) of the Act confirming that an estate or interest in a family home, shared home or principal private residence has re-vested in a bankrupt in accordance with section 85 of the Act may be made in writing to the Official Assignee and such certificate shall be in the Form No 34A. (link to follow)

162.^[40] (1) Where at a sitting for distribution it shall appear to the Court that the requirements of section 85B(1)(a) of the Act have been fulfilled, the Court shall, upon receipt of a report from the Official Assignee confirming that provision has been made for payment of the expenses, fees, costs and preferential payments due in the bankruptcy, order that the bankruptcy be discharged.

(2) No application shall be made under this rule until the Official Assignee has ascertained the debts and liabilities of the bankrupt.

163.^[41] (1) An application by a bankrupt for an order discharging his bankruptcy on the ground set forth in section 85B(1)(b) of the Act shall be grounded upon an affidavit of the bankrupt exhibiting a consent to such discharge, in the Form No 35, from each of his creditors. Notice of the application and a copy of such affidavit shall be served upon the Official Assignee not less than ten days prior to the hearing thereof.

(2) The Court shall, upon receipt of a report from the Official Assignee confirming that provision has been made for payment of the expenses, fees, costs and preferential payments due in the bankruptcy, order that the bankruptcy be discharged.

(3) No application shall be made under this rule until the Official Assignee has ascertained the debts and liabilities of the bankrupt.

164.^[42] (1) An application under section 85D(1) of the Act for a bankruptcy payment order shall be made by motion in the bankruptcy on notice to the bankrupt, grounded on an affidavit sworn by or on behalf of the applicant, specifying the amount of the bankruptcy payment order sought and the reasons for the application.

(2) An application under section 85D(5) of the Act shall be made by motion in the bankruptcy on notice to the Official Assignee or the trustee in bankruptcy or (as the case may be) the bankrupt, grounded on an affidavit sworn by or on behalf of the applicant setting out the reasons why the bankruptcy payment order concerned should be varied.

165.^[43] [ • ]

166.^[44] [ • ]

XXXI. Costs

167.^[45] Where an order for payment of the costs of the petitioning creditor is made under section 12 of the Act, such costs shall, when taxed and ascertained, be paid out of the first net proceeds of the estate of the bankrupt next in priority to the costs, fees and expenses of the Official Assignee, unless the Court otherwise orders.

XXXII. General

168.^[46] (1) The following applications under the Act shall be brought by motion on notice grounded upon an affidavit sworn by or on behalf of the moving party:

(a) an application for an order pursuant to section 44B(1) of the Act;

(b) an application by the Official Assignee to compel compliance by a discharged bankrupt to co-operate in accordance with section 85(4) of the Act;

(d) an application for annulment of an adjudication pursuant to section 85C(1)(b) of the Act.

(2) A debtor may, by motion on notice to the creditor concerned, apply to the Court to strike out, dismiss or stay a bankruptcy summons or a petition:

(a) issued or presented by a specified creditor in respect of a specified qualifying debt, during the supervision period of a Debt Relief Notice issued under section 31 of the Personal Insolvency Act 2012 in respect of the debtor, or

(b) issued or presented by a creditor in respect of a debt covered by a Debt Settlement Arrangement (within the meaning of section 2 of the Personal Insolvency Act 2012) which is in effect in respect of the debtor, or

(c) issued or presented in respect of a debt covered by a Personal Insolvency Arrangement (within the meaning of section 2 of the Personal Insolvency Act 2012) which is in effect in respect of the debtor.

(3) On the date first fixed for the hearing of any motion referred to in sub-rule (1) or sub-rule (2), the Court may give such directions and make such orders, including the fixing of time limits, for the conduct of proceedings on the application, as appears convenient for the determination of the application in a manner which is just, expeditious and likely to minimise the costs of the application.

169. An application by the Official Assignee or a trustee, for the purposes of Article 19 of the Insolvency Regulation, for a certificate referred to in section 140C of the Act shall be made by the production by the Official Assignee or, as the case may be, the trustee, to the Master of a true copy of the order of the Court referred to in paragraph (a), (b) or (c) (as the case may be) of section 140C of the Act. The certificate shall be in the Form No 50.

[1] Order 76 substituted by SI 120 of 2012, effective 20 April 2012.

Superseded amendments: Order 76 substituted by SI 79 of 1989, effective 24 April 1989. Order 76 amended by SI 585 of 2001, effective 1 January 2002. This SI replaced some amounts in pounds in the RSC with convenient euro equivalents. Unless specifically adjusted by SI 585 of 2001, other references to “£” in the RSC were converted to euro at the rate of €1 = £0.787564, effective 1 January 2002. SI 585 of 2001 replaced “£500” with “€650” in Order 76 rule 29(1); “£500” and “£100” with “€650” and “€130” respectively in rule 90(3); “£500” with “€650” in rule 127(3) and “£5,000” with “€6,500” in rule 153.

[2] Order 76 rule 1(1) amended by SI 461 of 2013, effective 3 December 2013. This added “or a bank authorised…” to the definition of “the Bank”, inserted the definition of “bankruptcy payment order” and substituted the definition of “Official Assignee”.

[3] Definition of “statutory sitting” deleted by SI 232 of 2016, effective 1 June 2016.

[4] This paragraph inserted by SI 232 of 2016, effective 1 June 2016.

[5] Order 76 rule 11(1) amended by SI 461 of 2013, effective 3 December 2013. Reference to “four days” was substituted by “fourteen days”.

[6] Order 76 rule 13(1) amended by SI 307 of 2013, effective 26 August 2013. This substituted “an address within the jurisdiction” with “an address for service.”

[7] Order 76 rule 13(2) substituted by SI 461 of 2013, effective 3 December 2013. This substituted “a less amount than €1,904.61” with “an amount of €20,000 or less”.

[8] Order 76 rule 13(3) deleted by SI 307 of 2013, effective 26 August 2013.

[9] Order 76 rule 15 amended by SI 307 of 2013, effective 26 August 2013. This substituted “at the address within the jurisdiction for the service of notices” with “at his address for service.”

[10] Order 76 rules 19(1)(f) and 19(1)(g) substituted by rules 19(1)(f), (g) and (h), by SI 461 of 2013, effective 3 December 2013.

[11] Order 76, rule 19(1)(c) substituted by SI 232 of 2016, effective 1 June 2016.

[12] Order 76, rule 19(1)(g) substituted by SI 232 of 2016, effective 1 June 2016.

[13] Order 76, rule 23 substituted by SI 232 of 2016, effective 1 June 2016.

[14] Order 76, rule 26(1) substituted by SI 232 of 2016, effective 1 June 2016.

[15] Order 76 rule 26(4) inserted by SI 461 of 2013, effective 3 December 2013.

[16] Order 76 rule 27 substituted by SI 461 of 2013, effective 3 December 2013.

[17] Order 76 rule 29(1) amended by the substitution of €200 for €650 by SI 600 of 2014, effective 31 December 2014.

[18] Order 76, rule 42 deleted by SI 232 of 2016, effective 1 June 2016.

[19] Order 76, rule 43 substituted by SI 232 of 2016, effective 1 June 2016.

[20] Order 76, rule 64(1) substituted by SI 232 of 2016, effective 1 June 2016.

[21] Order 76, rule 67 substituted by SI 232 of 2016, effective 1 June 2016.

[22] Title of Order 76 Part XIX changed from “The Bankrupt's Statement of Affairs” by SI 461 of 2013, effective 3 December 2013.

[23] Order 76 rule 80 substituted by SI 461 of 2013, effective 3 December 2013.

[24] Order 76, rule 80(1) substituted by SI 232 of 2016, effective 1 June 2016.

[25] Order 76, rules 80(4) and (5) substituted by SI 232 of 2016, effective 1 June 2016.

[26] Order 76 rules 88 to 99 deleted by SI 461 of 2013. SI 461of 2013 is effective 3 December 2013, subject to paragraph (5) which states: “Notwithstanding paragraph (4), proceedings on any petition to the Court under section 87 of the Bankruptcy Act 1988 presented before the 3rd day of December, 2013 may be continued on and following the 3rd day of December, 2013 and determined as if paragraph (4) had not come into operation.”

[27] Order 76, rule 100 substituted by SI 232 of 2016, effective 1 June 2016.

[28] Order 76 rule 101 substituted by SI 461 of 2013, effective 3 December 2013. This deleted “, save rules 89 to 99 concerning arrangements under the control of the Court,” following “The provisions of the preceding rules of this Order”.

[29] Order 76, rule 102(1) substituted by SI 232 of 2016, effective 1 June 2016.

[30] Order 76, rule 103 substituted by SI 232 of 2016, effective 1 June 2016.

[31] Order 76, rule 132 substituted by SI 232 of 2016, effective 1 June 2016.

[32] Order 76 rule 136 substituted by SI 461 of 2013, effective 3 December 2013.

[33] Order 76 rules 137 to 140 deleted by SI 461 of 2013, effective 3 December 2013.

[34] Order 76 rule 141(1) substituted by SI 461 of 2013, effective 3 December 2013.

[35] Order 76 rule 142 substituted by SI 461 of 2013, effective 3 December 2013.

[36] Order 76 rules 144 to 155 deleted by SI 461 of 2013, effective 3 December 2013.

[37] Order 76 rules 156 to 158 deleted by SI 461 of 2013, effective 3 December 2013.

[38] Order 76 rule 160(1) substituted by SI 461 of 2013, effective 3 December 2013.

[39] Order 76, rule 161 substituted by SI 232 of 2016, effective 1 June 2016.

[40] Order 76 rules 162 to 166 substituted as rules 162, 163 and 164 by SI 461 of 2013, effective 3 December 2013.

[41] Order 76 rules 162 to 166 substituted as rules 162, 163 and 164 by SI 461 of 2013, effective 3 December 2013.

[42] Order 76 rules 162 to 166 substituted as rules 162, 163 and 164 by SI 461 of 2013, effective 3 December 2013.

[43] Order 76 rules 162 to 166 substituted as rules 162, 163 and 164 by SI 461 of 2013, effective 3 December 2013.

[44] Order 76 rules 162 to 166 substituted as rules 162, 163 and 164 by SI 461 of 2013, effective 3 December 2013.

[45] Order 76 rule 167 substituted by SI 461 of 2013, effective 3 December 2013.

[46] Order 76 rule 168 substituted by SI 461 of 2013, effective 3 December 2013.

[47] Order 76, rule 168(1)(c) substituted and rule 168(1)(d) inserted by SI 232 of 2016, effective 1 June 2016.

Court Rules

Details

Order 76 - Bankruptcy