units

LAW4339

Faculty of Law

18 September 2017 26 April 2024

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This unit entry is for students who completed this unit in 2016 only. For students planning to study the unit, please refer to the unit indexes in the the current edition of the Handbook. If you have any queries contact the managing faculty for your course or area of study.

Monash University

6 points, SCA Band 3, 0.125 EFTSL

Undergraduate - Unit

Refer to the specific census and withdrawal dates for the semester(s) in which this unit is offered.

Faculty

Law

Offered

Clayton

  • Second semester 2016 (Day)

Synopsis

This unit is essentially concerned with an exploration of the legal consequences of an individual becoming insolvent. This includes an overview of the formal processes and consequences of bankruptcy; an analysis of the impact of bankruptcy on a person's property rights; consideration of the property that is available to creditors and the treatment of claims in a bankruptcy; an examination of the alternatives to bankruptcy, particularly the formal alternatives offered under the Bankruptcy Act 1966 (Cth); and a consideration of the impact of an 'overseas' element in both bankruptcy and its alternatives.

Topics covered include:
an assessment of the nature, objectives and features of personal insolvency law
an overview of the administrative machinery that supports bankruptcy, sources of law and the courts that have jurisdiction in personal insolvency
an outline of the proceedings that lead to bankruptcy
an examination of the meaning of 'insolvency' and the associated problems of proof
the impact of bankruptcy on a person's contractual and property rights, including the operation of the law to determine which property is made available to unsecured creditors in the event of bankruptcy. This requires an examination of the meaning of 'property' in this context and the scheme of the legislation in determining which property is to be made available to creditors. Of particular interest here is the 'backdating' of the bankruptcy to catch property that has been disposed of by the debtor prior to bankruptcy and the 'clawback' provisions which allow recover of property disposed of prior to bankruptcy
the claims which are recognised in the event of bankruptcy, the principles governing distribution of the bankrupt estate and the position of secured creditors
the ending of bankruptcy, through discharge and annulment
the alternatives to bankruptcy, particularly those formal alternatives available under the Bankruptcy Act
the implications of an 'overseas element' in a bankruptcy, including the operation of the Cross Border Insolvency Act 2008 (Cth) as it applies to individuals

Outcomes

The objectives of this unit are to enable students to:
understand the legal impact of insolvency on an individual's rights and liabilities, including a comparison of the way in which these issues are handled in other jurisdictions
critically evaluate the law relating to personal insolvency in its broader regulatory, social and economic context,
demonstrate the intellectual and practical skills needed to interpret legal conclusions and professional decisions
identify, research, synthesise and evaluate relevant legal, factual and policy issues;
demonstrate cognitive and creative skills in approaching legal issues and generating appropriate responses and developing new understandings; and
engage in critical analysis and make reasoned and appropriate choices among alternatives.

Assessment

(a) Research assignment of 1500 words, worth 30% of the total assessment
(b) Open book 2.5 hour examination, worth 70% of the total assessment.

Workload requirements

Minimum total expected workload to achieve the learning outcomes for this unit is 144 hours per semester typically comprising a mixture of scheduled learning activities and independent study. The unit requires on average three/four hours of scheduled activities per week. Scheduled activities may include a combination of teacher directed learning, peer directed learning and online engagement.

See also Unit timetable information

Chief examiner(s)

Associate Professor John Duns

Prerequisites

For students who commenced their LLB (Hons) course in 2015 or later:
LAW1111; LAW1114; LAW1112; LAW1113; LAW2101; LAW2102; LAW2112; LAW2111

For students who commenced their LLB course prior to 2015: LAW1100 OR LAW1101 and LAW1102 or LAW1104; LAW2101; LAW3401; LAW4169 OR LAW3111 and LAW4171 OR LAW3112

Co-requisites

For students who commenced their LLB (Hons) course in 2015 or later: LAW3111; LAW3112

Prohibitions

LAW5142 OR LAW4315