Insolvency, Restructuring and Dissolution Act 2018 · 2020 Revised Edition · Part 3 · Official Assignee, Official Receiver and Insolvency Practitioners
42. Control of trustee in bankruptcy by Official Assignee
Feedback & supportThe Official Assignee is to take cognizance of the conduct of a trustee in bankruptcy in the administration of the estate of a bankrupt.
Official Assignee
“Official Assignee” means the Official Assignee appointed under section 16(1) and includes a Deputy Official Assignee, a Senior Assistant Official Assignee and an Assistant Official Assignee;
If the trustee in bankruptcy does not faithfully perform the trustee’s duties or duly observe all the requirements imposed on the trustee by this Act or any other written law with respect to the performance of the trustee’s duties, or if any complaint is made to the Official Assignee by any creditor or bankrupt in relation to the trustee’s conduct in the administration of the estate, the Official Assignee must inquire into the matter and take such action on the matter as the Official Assignee thinks expedient.
trustee in bankruptcy
“trustee in bankruptcy” means a person appointed under section 36 as trustee of a bankrupt’s estate.
The Official Assignee may —
at any time require the trustee in bankruptcy to answer any inquiry in relation to the trustee’s administration of the estate of a bankrupt; and
direct an investigation to be made of the books and vouchers of the trustee.
It is the duty of the trustee in bankruptcy —
to furnish the Official Assignee with such information;
to produce to the Official Assignee, and permit inspection by the Official Assignee of, such books, papers and other records; and
to give the Official Assignee such other assistance,as the Official Assignee may reasonably require for the purpose of enabling the Official Assignee to carry out the Official Assignee’s functions in relation to the bankruptcy.
The Official Assignee may, having regard to the results of any inquiry or investigation made under this section, apply to the Court for the removal of the trustee in bankruptcy.
The Official Assignee may forfeit the security furnished by the trustee in bankruptcy under section 38 if —
security
“security” means any mortgage, charge, pledge, lien or other security recognised by law;
the trustee fails to comply with section 332(9) or 339(1) as it applies to the trustee;
the trustee fails to submit the report of the administration of the bankruptcy in accordance with section 344; or
the trustee fails to perform any other duty, or to duly observe any other requirement imposed on the trustee by this Act (other than as mentioned in paragraph (a) or (b)) or any other written law with respect to the performance of the trustee’s duties.
The Official Assignee must not forfeit any security until the Official Assignee has given the trustee in bankruptcy concerned an opportunity to show cause why the security furnished by the trustee under section 38 should not be forfeited.
trustee
“trustee”, in relation to a bankruptcy and a bankrupt, means the trustee of the bankrupt’s estate and includes the Official Assignee when acting as trustee of the bankrupt’s estate;
If, after giving the trustee an opportunity to show cause, the Official Assignee is satisfied that the trustee in bankruptcy had no reasonable excuse for the failure mentioned in subsection (6)(a) or (b), the Official Assignee must forfeit all or part of the security furnished by the trustee under section 38.
In determining whether to forfeit any, all or part of the security furnished by the trustee in bankruptcy under section 38, the Official Assignee is to have regard to the circumstances surrounding the trustee’s failure mentioned in subsection (6)(a) or (b) (including whether the trustee had a reasonable excuse for the failure), and to any mitigating circumstances.