LAW4339 - Personal insolvency - 2018

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

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.

1. Research assignment of 1500 words, worth 30% of the total assessment
2. Open book 2.5 hour examination, worth 70% of the total assessment.

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