378
THE NEW ZEALAND GAZETTE.
[No. 21

be allowed his costs, or any part of them incident to such proceeding, and such application is not made at the time of the proceeding,—
(1.) Such party or person shall serve notice of his intended application on the party or person whom he seeks to make liable for the same, who may appear on such application, and object thereto.
(2.) No costs of or incidental to such application shall be allowed to the applicant unless the Court is satisfied that the application could not have been made at the time of the proceeding.

80. In any case in which, after a bankruptcy petition has been presented by a creditor against a debtor, and before the hearing of such petition, the debtor files a petition, unless in the opinion of the Court the estate has benefited thereby, or there are special circumstances which make it just that such costs should be allowed, no costs shall be allowed to the debtor or his solicitor out of the estate.

81. In the case of a bankruptcy petition against a partnership, the costs payable out of the estates incurred up to and inclusive of the order of adjudication shall be apportioned between the joint and separate estates in such proportions as the Official Assignee may in his discretion determine.

82. (1.) Where the joint estate of any co-debtors is insufficient to defray any costs or charges properly incurred prior to the order of adjudication, the Official Assignee may pay such costs or charges out of the separate estates of such co-debtors, or one or more of them, in such proportions as in his discretion he may think fit. The Official Assignee may also, as in his discretion he may think fit, pay any costs or charges properly incurred prior to the order of adjudication for any separate estate out of the joint estate, or out of any other separate estate, and any part of the costs or charges of the joint estate incurred prior to the adjudication which affects any separate estate, out of that separate estate.
    (2.) Where the joint estate of any co-debtors is insufficient to defray any costs or charges properly incurred after the adjudication, the Assignee, with such consent as is herein-after mentioned, may pay such costs or charges out of the separate estates of such co-debtors, or one or more of them.
    (3.) No payment under this rule shall be made out of a separate estate or joint estate by the Assignee without the consent of the supervisors of the estate out of which the payment is intended to be made, if any, or, if such supervisors withheld or refuse their consent, without an order of the Court.

Bankruptcy Notice.

83. A bankruptcy notice may be issued by any Court in which a bankruptcy petition against the debtor might be filed.

84. A bankruptcy notice shall not be invalid by reason that it is issued by a wrong Court, but in such case the Court may, if it think fit, on the application of the debtor, order the notice to be set aside on such terms as to costs or otherwise as may be just.

85. A creditor desirous that a bankruptcy notice may be issued shall produce to the Registrar an office copy of the judgment on which the notice is founded, and file the notice together with a request for issue. The creditor shall at the same time lodge with the Registrar two copies of the bankruptcy notice, to be sealed and issued for service.

86. (1.) Every bankruptcy notice shall be indorsed with the name and place of business of the solicitor actually suing out the same, or, if no solicitor be employed, with a memorandum that it is sued out by the creditor in person.
    (2.) There shall also be indorsed on every bankruptcy notice an intimation to the debtor that if he has a counter-claim, set-off, or cross-demand which equals or exceeds the amount of the judgment debt, and which he could not have set up in the action in which the judgment was obtained, he must within the time specified in the notice file an affidavit to that effect with the Registrar.

87. The filing of such affidavit shall operate as an application to set aside the bankruptcy notice; and thereupon the Registrar shall fix a day for hearing the application, and, not less than three days before the day so fixed, shall give notice thereof both to the debtor and the creditor and their respective solicitors if known. If the application cannot be heard until after the expiration of the time specified in the notice as the day on which the act of bankruptcy will be complete, the Registrar shall extend the time; and no act of bankruptcy shall be deemed to have been committed under the notice until the application has been heard and determined.

88. Subject to the power of the Court to extend the time, a bankruptcy notice to be served in New Zealand shall be served within one month from the issue thereof.

89. A bankruptcy notice shall be served, and service thereof shall be proved, in the like manner as is by the rules prescribed for the service of a creditor’s petition.

90. When the Court makes an order setting aside the bankruptcy notice, it may at the same time declare that no act of bankruptcy has been committed by the debtor under such notice.

Service of Creditor’s Petition.

91. Service of a petition and the summons referred to in the 39th section of the Act shall be proved by affidavit, with a copy of the petition attached, which shall be filed in Court forthwith after the service.

Interim Receiver.

92. After the presentation of a petition upon the application of a creditor or of the debtor himself, and upon proof by affidavit of sufficient grounds for the appointment of the Official Assignee as receiver and manager of the debtor’s estate, or any part thereof, the Court may, if it thinks fit, and upon such terms as may be just, make such appointment.

93. Where an order is made appointing the Official Assignee to be receiver and manager of the estate of the debtor, or any part thereof, such order shall bear the number of the petition in respect of which it is made.

94. Before any such order is issued, the person who has made the application therefor shall deposit with the Official Assignee such sum, if any, as the Court shall direct for the expenses which may be incurred by him.

95. If the sum so to be deposited for the expenses which may be incurred by the Official Assignee shall prove to be insufficient, the person on whose application the order has been made shall from time to time deposit with the Official Assignee such additional sum as the Court may, on the application of the Official Assignee, from time to time direct, and such sum shall be deposited within twenty-four hours after the making of the order therefor. If such additional sum shall not be so deposited, the order appointing the Official Assignee as such receiver and manager may be discharged by the Court.

96. If an order appointing the Official Assignee a receiver and manager is followed by an order of adjudication, the deposits made by the creditor on whose application such Assignee was appointed receiver and manager shall be repaid to him (except and so far as such deposits may be required by reason of insufficiency of assets for the payment of the fees chargeable and the expenses incurred by the Assignee as such receiver and manager) out of the proceeds of the estate.

97. Where, after an order has been made appointing the Official Assignee a receiver and manager, the petition is dismissed, the Court shall, upon application to be made within twenty-one days from the date of the dismissal thereof, adjudicate with respect to any damages or claim thereto arising out of the appointment, and shall make such order as the Court thinks fit, and such decision or order shall be final and conclusive between the parties, unless the order be appealed from.

98. A copy of every order for the appointment of the Official Assignee as receiver and manager of the debtor’s property, sealed with the seal of the Court, shall forthwith be sent by post or otherwise by the Registrar to the Official Assignee.

99. The Official Assignee shall cause a copy of the order, sealed with the seal of the Court, to be served on the debtor, if he is within the colony.

100. There may be included in an order appointing the Official Assignee receiver and manager of the debtor’s property an order staying any action or proceeding against the debtor, or staying proceedings generally.

101. All proceedings under the Act, down to and including the making of an order of adjudication, shall be at the cost of the party prosecuting the same; but, when an order of adjudication is made, the costs of the petitioning creditor (including the costs of the bankruptcy notice, if any, sued out by him) shall be taxed and be payable out of the proceeds of the estate in the order of priority prescribed by the Act.

Hearing of Petition.

102. A creditor’s petition shall not be heard until the time fixed by the summons referred to in section 39 of the Act: Provided that where it is proved to the satisfaction of the Court that the debtor has absconded, or in any other case for good cause shown, the Court may, on such terms, if any, as the Court may think fit to impose, hear the petition at such earlier date as the Court may deem expedient.

103. When the petition and summons have not been served the Registrar may from time to time alter the first day appointed for the hearing, and appoint another day and hour.

104. Where there are more respondents than one to a petition the rules as to service shall be observed with respect to each respondent, but where all the respondents have not been served the petition may be heard separately or collectively as to the respondents not then served according as service upon them is effected.

105. Where a debtor intends to show cause against a petition he shall file a notice with the Registrar specifying the statements in the petition which he intends to deny or dispute, and serve on the petitioning creditor or his solicitor, if known, a copy of the notice before the time fixed by the summons for the hearing of the petition.