Bankruptcy - Petition of Creditor or Insolvency Practitioner

October 2007

12.42 Submission 

A petition for bankruptcy may be presented by a individual’s creditor(s) or the supervisor of an individual voluntary arrangement. In such circumstances, section 288(1) of the Act requires a bankrupt to submit a statement of affairs to the official receiver within 21 days of the making of the bankruptcy order (the official receiver has the power to extend this period where appropriate). The statement of affairs (on form SABK), must be verified by a statement of truth and be submitted to the official receiver with a copy [Note 1].  As in a winding up, in practice the official receiver may accept the actual statement of affairs and take a photocopy for his/her own purposes.


12.43 Statement of affairs from other insolvency proceedings

If a voluntary arrangement has immediately preceded the bankruptcy order, the official receiver may decide that the statement of affairs submitted in those proceedings has adequate information for the purposes of the bankruptcy. If the individual traded after the voluntary arrangement was approved, the official receiver may consider that a new statement of affairs should be submitted.


12.44 Release from duty to submit statement of affairs 

Although the bankrupt has a duty to submit a statement of affairs within 21 days of the making of the bankruptcy order, the official receiver may choose to release a bankrupt from this requirement. The official receiver should consider releasing the bankrupt from this obligation where its submission is impracticable or would not materially assist his/her inquiries[Note 2] [Note 3] . The official receiver should send notice to the bankrupt that he/she has been released from this obligation (form SARE) and should make a note to this effect on the Case Assessment Record (CAR).  Further, the official receiver should, as soon as practicable, send a report to creditors containing a summary of the bankrupt’s affairs as known to the official receiver and any observations thereon [Note 4].

Where the official receiver has previously reported to the creditors, he/she need not send a further report unless there are additional matters which ought to be brought to their attention [Note 5].


12.45 Service of forms (amended July 2010) 

Where it is considered that a statement of affairs is necessary, the official receiver should hand the bankrupt when he/she first attends for interview one set of statement of affairs forms, with accompanying guidance notes (form SABK). The bankrupt’s written acknowledgement for receipt of the forms should be obtained (form SARF).  If the bankrupt does not attend immediately, the forms and guidance notes should be sent to him/her by first class post or any other valid means of delivery (see also paragraph 12.28) [note 5A]. Depending on the circumstances of non-attendance, the official receiver may wish, instead of or additionally to first class post, to use recorded delivery, to provide better subsequent proof of service of the documents. Where the bankrupt is in prison, the forms should be served when he/she is interviewed at the prison.


12.46 Procedure when lodged 

The official receiver must upon receipt of the verified statement of affairs file it with the court and retain a copy on his/her file [Note 6] .  The bankrupt’s failure to comply without a reasonable excuse with his/her duty to submit a statement of affairs, which complies with the requirements laid down, makes the bankrupt guilty of contempt of court and liable to be punished accordingly (i.e. either by fine or imprisonment) [Note 7]. In practice, where a bankrupt has failed to comply with his/her obligations the official receiver should consider reporting these matters to the court and applying for the running of the automatic discharge period to be suspended (see chapter 22 for further details).


12.47 Ill-health a reasonable excuse

Ill-health may be considered to constitute a reasonable excuse for a bankrupt’s failure to submit a statement of affairs.


12.48 Interim receivership 

Where an interim receiver is appointed under section 286 of the Act, there is no provision for lodgement of a statement of affairs. However, the debtor is required to give a full inventory of all his/her property and such other information as the receiver may reasonably require for the purpose of carrying out his/her functions [Note 8].  Where the official receiver is appointed interim receiver, he/she should consider whether a full statement of assets and liabilities would assist in carrying out his/her duties.


[Back to Part 2 - Company statement of affairs] [Onto Part 4 - Bankruptcy - debtor’s petition]