In force2020 Revised Edition

Contents

Insolvency, Restructuring and Dissolution Act 2018 · 2020 Revised Edition · Part 3 · Official Assignee, Official Receiver and Insolvency Practitioners

46. Liability of trustee in bankruptcy

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(1)

Where —

(a)

a trustee in bankruptcy has misapplied or retained, or become accountable for, any money or other property comprised in the bankrupt’s estate; or

(b)

the estate of a bankrupt has suffered any loss in consequence of any misfeasance or breach of fiduciary or other duty by a trustee in bankruptcy in the carrying out of the trustee’s functions,the Official Assignee, the bankrupt or any creditor of the bankrupt may apply to the Court for any order specified in subsection (2).

(2)

Upon hearing an application made under subsection (1), the Court may, for the benefit of the estate, order the trustee in bankruptcy to —

(a)

repay, restore or account for any money or other property (together with interest at such rate as the Court may think just); or

(b)

pay such sum by way of compensation in respect of the misfeasance or breach of fiduciary or other duty as the Court may think just.

(3)

Any order made by the Court under subsection (2) is without prejudice to any liability on the part of the trustee in bankruptcy arising apart from this section.

(4)

Where a trustee in bankruptcy seizes or disposes of any property that is not comprised in the bankrupt’s estate, and at the time of the seizure or disposal the trustee believes, and has reasonable grounds for believing, that the trustee is entitled (whether pursuant to an order of the Court or otherwise) to seize or dispose of that property, the trustee —

(a)

is not liable to any person (whether under this section or otherwise) in respect of any loss or damage resulting from the seizure or disposal, except insofar as the loss or damage is caused by the negligence of the trustee; and

(b)

has a lien on the property or the proceeds of its sale for such of the expenses of the bankruptcy as were incurred in connection with the seizure or disposal.

Terms defined in this Act

bankrupt
Defined · s 2
“bankrupt” means —(a)an individual debtor who has been adjudged bankrupt by a bankruptcy order; or(b)where a bankruptcy order has been made against a firm, each of the partners in the firm;
Open s 2
Court
Defined · s 2
“Court” means the General Division of the High Court;
Open s 2
creditor
Defined · s 273
“creditor”, in relation to a debtor proposing a voluntary arrangement under Part 14, means a creditor to whom the debtor owes a debt provable in bankruptcy;
Open s 273
liability
Defined · s 2
“liability” means a liability to pay money or money’s worth, regardless whether such liability is present or future, certain or contingent or of an amount that is fixed or liquidated or that is capable of being ascertained by fixed rules or as a matter of opinion, and includes any such liability arising —(a)under any written law;(b)under contract, tort or bailment;(c)as a result of a breach of trust by the person liable; or(d)out of an obligation to make restitution;
Open s 2
Official Assignee
Defined · s 2
“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;
Open s 2
property
Defined · s 2
“property” includes —(a)money, goods, things in action, land and every description of property, wherever situated; and(b)obligations and every description of interest, whether present or future or vested or contingent, arising out of or incidental to property;
Open s 2
trustee
Defined · s 2
“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;
Open s 2
trustee in bankruptcy
Defined · s 2
“trustee in bankruptcy” means a person appointed under section 36 as trustee of a bankrupt’s estate.
Open s 2