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Burdette, D; Calitz, J (2004)
Publisher: Juta & Company Ltd.
Languages: English
Types: Article
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    • 96 This is of particular interest considering that the master has on occasion appointed more than three trustees to administer the estate in question.
    • 97 This article only deals with appointments made by the master in the case of a company being wound up by the court, although similar rules apply in the case of a company being wound up voluntarily by resolution.
    • 98 as amended by s 16 of Judicial Matters Amendment Act 16 of 2003 - emphasis provided.
    • 99 (n 92). See also par 3.2.1 above.
    • 100 See eg Murray v Edendale Estates Ltd 1908 TS 17 22; In re Greatrex Footwear (Pty) Ltd (II) 1936 NPD 536 537-539; Wolstenholme v Hartley Farmers Agricultural Co-operative Co Ltd 1965 4 SA 73 (SR); Ex parte Clifford Homes Construction (Pty) Ltd 1989 4 SA 610 (W) 614; Krumm v The Master 1989 3 SA 944 (D).
    • 101 s 364(2) of the Companies Act.
    • 102 s 369(2) of the Companies Act.
    • 103 s 374 of the Companies Act.
    • 125 See Burdette (n 28) 89-95.
    • 126 In Australia the term ''bankruptcy'' is used to refer to the process which involves dealing with the affairs of an individual, and ''liquidation'' or ''winding-up'' refers to the process dealing with the affairs of an insolvent corporation.
    • 127 Bankruptcy Act of 1966 (Cth).
    • 128 Corporations Act 2001.
    • 129 Under South African law the Insolvency Act also applies to companies that are wound up under the Companies Act 61 of 1973, and which are unable to pay their debts. S 339 of the Companies Act makes the Insolvency Act 24 of 1936 applicable in such cases, a feature not found in Australian legislation. See Burdette (n 28) 136.
    • 130 Despite the matter having been considered prior to its report, the Australian Law Reform Commission, in a report commonly known as the Harmer Report (Australian Law Reform Commission Report No 45 General Insolvency Inquiry) did not consider it a ''major issue'' that needed to be decided, and consequently a unified act was never introduced. See also Burdette (n 27) 91.
    • 131 Keay Insolvency, Personal and Corporate Law and Practice (1998) 361.
    • 132 It was done by Pearce, parliamentary secretary to the treasurer.
    • 133 It is anticipated that draft legislation will be circulated for public comment in 2006.
    • 134 See http//:www.aar.com.au/pubs/insol (04-07-06) for a discussion of the recent proposals.
    • 135 Specifically, the reforms are based on the findings of the following reviews and inquiries into the corporate insolvency framework: the 1997 Review of the Regulation of Corporate Insolvency Practitioners; the 1998 corporations and markets advisory committee (CAMAC) report Corporate Voluntary Administration; the 2000 CAMAC report Corporate Groups; the 2004 CAMAC report Rehabilitation of Large and Complex Enterprises; the 2004 parliamentary joint committee on corporations and financial services (PJC) report Corporate Insolvency Laws: A Stocktake and the 2004 report of the Hardie special commission of inquiry.
    • 148 Corporations Act 2001; Australian Securities and Investments Commission Act 2001; Insurance Contracts Act 1984; Superannuation (Resolution of Complaints) Act 1993; Superannuation Industry (Supervision) Act 1993; Retirement Savings Accounts Act 1997; Life Insurance Act 1995; Medical Indemnity (Prudential Supervision and Product Standards) Act 2003.
    • 149 Act 51of 2001.
    • 150 s 154A of the Bankruptcy Act of 1966.
    • 151 currently AUS$1 500 in terms of s 4 of the Bankruptcy (Registration Charges) Act 1997.
    • 152 Bankruptcy Regs 1996 - Reg 8.02.
    • 153 s 155(1) of the Bankruptcy Act 1966.
    • 154 s 155(2) of the Bankruptcy Act 1966.
    • 155 On 1 December 2004, new eligibility requirements for solicitor-controlling trustees were introduced. Bankruptcy reg 8.35(1)(f) provides that for subsection 188(2A) of the Bankruptcy Act 1966, a person (other than the official trustee or a registered trustee) is not eligible to act as a controlling trustee if the person has not by 1 December 2006: (i) become a full member of the insolvency practitioners association of Australia; or (ii) satisfactorily completed a course in insolvency approved by the inspector-general.
    • 156 s 155A (1A) of the Bankruptcy Act 1966.
    • 157 s 155(1) of the Bankruptcy Act 1966.
    • 158 currently AUS$1 000 as provided for in s 5 of the Bankruptcy (Registration Charges) Act 1997.
    • 159 s 155C of the Bankruptcy Act 1966.
    • 160 Keay (n 131) 27.
    • 185 See http//:www.insolvencyreg.org (30-06-2006) the official website of the international association of insolvency regulators (IAIR) for a list of personal insolvency procedures and corporate insolvency procedures.
    • 186 McKenzie-Skene ''Reforming insolvency law: a comparative study of Scotland and South Africa'' 2005 Nottingham LJ 17.
    • 187 See Credit Institutions (Reorganisation and Winding-up) Regulations 2004, which came into force on 5 May 2004. These regulations implement the directive of parliament and the council on the reorganisation and winding-up of credit institutions (2001/24/EC) for all UK credit institutions. These regulations provide that as from 5 May 2004, no winding-up proceedings or reorganisation measures in respect of EEA credit institutions can be undertaken in the UK, except in the circumstances permitted by the regulations. EEA reorganisation measures and winding-up proceedings must be recognised in the UK. See also Insolvency Act 1986 (Amendment) Reg 2002.
    • 188 Council Reg (EC) no 1346/2000 of 29 May 2000 on Insolvency Proceedings. See Sealy (n 179) 604.
    • 189 apart from Denmark.
    • 190 See also s 31-34 for provisions relating to communication between office-holders.
    • 191 Article 3 deals with jurisdiction.
    • 192 (n 32).
    • 193 Cork report (n 32) par 732. See Tolmie (n 39) 208.
    • 194 Cork report (n 32) par 702.
    • 195 Norris ''Insolvency practitioner regulation in the United Kingdom'' paper presented at the academics' meeting of the INSOL congress held in Cape Town on 2 and 3 April 2004.
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