Daily Archives: March 3, 2015

Part IX Debt Agreements

A Part IX (Part 9) debt agreement provides a relatively informal, low-cost alternative to bankruptcy for low income debtors (people who owe money to others).

To be eligible to propose that a Part IX debt agreement be formed, the debtor must:

1. Be insolvent as defined by the relevant legislation;
2. Meet the relevant income, debt and asset restrictions as provided by the legislation;
3. Not have been bankrupt, party to a debt agreement or given an authority under Part X of the Bankruptcy Act in the 10 years before the proposal time.

The benefits of forming a Part IX debt agreement is that upon acceptance of the agreement by creditors (the people to whom money is owed), the debt can be repaid over an extended period of time, during which time those debts are frozen.

If you wish to make a Part IX debt agreement proposal and you meet the eligibility criteria, we will prepare the relevant information and obtain from you the necessary supporting documents such as account statements etc and provide that to the official administrator who will then determine whether or not you have met the eligibility criteria which will then be distributed to your creditors for their acceptance or rejection.

If the majority of the creditors (in value) who reply accept the proposal within the relevant time frames, you will be required to meet the payments as set out in the debt agreement and the unsecured creditors will not be able to take any action against you or your property. There are time limits and criteria required to be met and if you require assistance please contact Hall & Co Solicitors to discuss the matter further.

Part X – Personal Insolvency Agreements

A Personal Insolvency Agreement is a formal agreement between a debtor (someone who owes money) and their creditors (someone who is owed money) that sets out how the debtor will satisfy the debts.

This document is executed by the debtor and his or her trustee (someone who has taken control of the debtor’s affairs) and will usually spell out exactly how money owed to creditors will be repaid over time and/or the sale of assets.

The agreement is a legally binding document which must be accepted by the majority of creditors. To determine whether you are eligible for a Part X (Part 10) agreement please contact our office for further information.

When we have explained in an easy to understand manner what your options are, if you wish to proceed with forming such an agreement we will attend to the preparation of a report which summarises your financial position to your creditors and the proposal you wish to make to them.

Whilst all creditors are not required to agree, creditors amounting to at least 75% of the dollar value of total debts must agree to your proposal.

If you decide that this is the course of action you wish to take, we will attend to the preparation of the statement of affairs and the completion of the relevant forms for the appointment of a trustee.

A meeting of creditors will then be conducted within 25 days where the creditors will vote as to the acceptance or rejection of your proposal.

If your proposal is accepted, those debtors which have proved their debt cannot take further legal action against you and the agreement shall remain in place until you have fulfilled your obligations as set out in the agreement.

Many legislative requirements must be complied with in order for a Part X agreement to be formed and we therefore recommend you call one of our experienced team members to assist you to determine whether or not you are eligible to propose that a Part X personal insolvency agreement, which can often be significantly shorter in duration than bankruptcy itself and also enables you to find relief from debt in a controlled manner.

What is a Work Licence?

A work licence is a restricted licence obtained by applying to the court in circumstances where the driver satisfies the criteria for the court to grant the licence.

There are two situations in which a driver may be able to apply for a work licence:

1. For a drink driving offence where the blood alcohol concentration (BAC) was below 0.15% at the time of the offence; and
2. A special hardship order, where the driver of a vehicle has accumulated more than 1 demerit point whilst on a good behaviour driving period.

Work Licence Following Drink Driving Offence

The Transport Operations (Road Use Management) Act 1995 (Qld) allows a driver who has been charged with driving or being in charge of a motor vehicle whilst under the influence of alcohol or being in charge of a vehicle while a relevant dangerous drug is in saliva / blood, to apply to the court for a restricted work licence if the following criteria are met:

1. You are the holder of a Queensland open or provisional licence;
2. At the time of the offence, you were not driving in the course of your employment;
3. At the time of the offence, you were detected with a blood alcohol concentration of not more than 0.15%.

Despite satisfying these criteria, you will not be entitled to make an application if, within the five years immediately prior to the date of your application:

1. Your Queensland driver’s licence has been previously suspended or disqualified;
2. You have been disqualified from holding or obtaining a Queensland driver’s licence;
3. You have been convicted of dangerous operation of a motor vehicle.

Please note your eligibility to apply is not affected in certain circumstances such as when your driver’s licence was suspended as a result of non-payment of a State Penalties Enforcement Registry (SPER) fine and a number of other circumstances.

If you are in any doubt please contact Hall & Co Solicitors to discuss your eligibility.

Refusing to Provide a Breath Specimen

If you refuse or fail to provide a breath test or blood test as directed by the police, you may be charged with the offence of “failing to provide a specimen of breath or blood” and you will be required to go to court to have this charge dealt with.

If the court finds you guilty of this offence, you will be penalised as if you had committed a ‘major drink driving offence’, meaning that you will be deemed to have had a blood alcohol concentration of 0.15% or higher and you will therefore be penalised accordingly with a fine and licence suspension.

You will not be able to apply for a work licence in this circumstance.

The Process

In the case of drink / drug driving offences, prior to being released by members of the Queensland Police Service you will be issued with a Notice to Appear, which will set out the particulars of which court you are to attend and the date and time you are required to appear in person.

At this time, it is imperative that you seek legal advice to determine the appropriate course of action you should take and whether you are eligible to apply for a work licence.

You should remember that you only get one chance to apply for a work licence and the legislation requires a number of conditions are met. If unsuccessful, the consequences may be disastrous for both your family and your ability to maintain your employment.

Once you have contacted our office to arrange a mutually convenient time to attend we will obtain the relevant facts from the Queensland Police Service directly and then go about taking your instructions to prepare the necessary material to be filed at court in anticipation of your application.

A good lawyer will ensure that the affidavit (a document explaining your circumstances which is sworn by you and filed in the court) will explain the circumstances of the offence in question, the type of work you perform, why a licence is required to enable you to perform that work, your family and financial circumstances.

If you are not self-employed, your solicitor will also draft the necessary affidavit of your employer for them to sign to support you. The next step is filing the affidavit and application material to allow the court to set down a date to hear your application.

On the day of the application a representative of your law firm will stand by your side and make the application to the court, so that you are not required to say or do anything in most circumstances. For many of our clients, a court appearance is daunting as they have never been to court and they find that having a legal professional with them is an enormous stress relief. Added to this is the knowledge that the solicitor has made similar applications numerous times before and the likelihood of success is therefore higher.

Upon the successful hearing of the application, you will be required to take the order of the court to Queensland Transport office. It is important to remember the court order is not a licence and you are not entitled to drive a vehicle simply because you have the order. When you go to Queensland Transport, your licence will be amended to include the details of the order made by the court. You are further required to carry a copy of the court order with you at all times, along with your licence.

If you are successful in your application for a work licence you will be entitled to drive within the criteria of the order of the court but you should also note that in order to obtain the licence you must make a plea of guilty to the offence you are charged with.

A fine will be imposed at this point along with a prescribed time that the work licence restrictions will be in force. You should note that a court is not obliged to provide a work licence order to you so upon an application being made it is necessary for the criteria to be met to allow the court to exercise its discretion to make an order in your favour. If you find yourself in this situation, contact a solicitor to discuss this matter without delay.

We have significant experience in making this type of application to the court, in courts such as Holland Park Magistrates Court, Beenleigh Magistrates Court and all courts in the greater Brisbane region, and we are able to provide certainty and reassurance to you in what is no doubt a stressful time in your life.