Bankruptcy & employment

If you’re declared bankrupt, you need to cancel your building licence.

Steps you need to take

You must stop all residential building works immediately, advise your clients that your licence has been cancelled, and return all money and payments for work you’re unable to complete. You must also advise your clients to contact the home warranty insurer on the certificate of insurance you gave them when the building contract was accepted.

You must hand in your license card to the Home Building Service, Government Access Centre or Fair Trading Centre. If you can’t return the card, you must provide a statutory declaration explaining why. Failure to return your licence can result in fines.

If you hold a contractor licence (e.g., you’re a plumber, electrician, bricklayer or carpenter), you may be able to continue restricted trade under the licence.

Steps you need to take

You must notify the Department of Fair Trading of bankruptcy immediately. They’ll then ask you to provide additional information, which they may use to decide whether your licence will be cancelled.

If they let you keep your licence, it may carry certain conditions. If, however, your licence is cancelled, you must follow the same process as licenced builders.

If you’re an owner, partner or director of a registered business, you must notify the Australian Securities & Investments Commission (ASIC) of your personal bankruptcy or insolvency. What happens next will depend on the type of business you’re running, reporting obligations and licencing restrictions.

When you declare that you’re bankrupt or entering into a personal insolvency agreement, you’ll no longer be an officeholder of the company.

Steps you need to take

You must lodge a Form 296 Notice of disqualification from managing a corporation with ASIC.

The company can appoint your replacement by lodging a Form 484 Change to company details within 28 days. Any remaining officeholders must sign Form 484. However, if there are no remaining officeholders, company members can appoint a replacement director.

It’s an offence for you to continue managing a corporation without leave of the Court, which  may carry a penelaty of fines or imprisonment,

If you’re facing bankruptcy, you may have your licence cancelled if you’re a:

• Real estate agent
• Salesperson or registered manager
• Strata management agent
• Conveyancer
• Property valuer

Under s16(1A) of the Property, Stock and Business Agents Act 2002 (NSW), a person who’s currently (or has been in the preceding 3 years) an undischarged bankrupt is a disqualified person.

The only exception to this is if the Director-General is satisfied you took all reasonable steps to avoid bankruptcy. In this case, you may be in a position to keep your licence.

Steps you need to take

You need to notify the Department of Fair Trading of your bankruptcy status. You should then gather documentation to show the Director-General you took all reasonable steps to avoid bankruptcy when financial difficulty first began.

If you hold an Australian Financial Services Licence and declare bankruptcy, your licence may be cancelled.

Why? Because it may impact your ability to satisfy the ‘fit and proper person’ test required to hold such a licence.

Steps you need to take

You should notify ASIC of your bankruptcy immediately.

Legal practitioners must satisfy the ‘fit and proper person’ test to continue to practise. ‘Show cause’ events such as bankruptcy and other forms of insolvency must be disclosed to the Law Society within 7 days.

Steps you need to take

You must send a ‘Notice of show cause event’ form to the Professional Standards Department at the Law Society, accompanied with relevant documentation. You must also send a statement to the Law Society Within 28 days of being declared bankrupt that justifies why you are a fit and proper person despite your circumstances.

The Law Society Council will investigate the matter and determine if you’re a fit and proper person who may hold a Practising Certificate, and whether restrictions on practice may be imposed.

If you’re approved to continue practicing, you may have to submit a bankruptcy undertaking stating you won’t:

• Operate any trust account or controlled money account
• Commence or continue to act as a trustee of any real or personal property
• Commence or continue to act in the office of executor or administrator of a deceased person’s estate
• Engage in any activity you’re disqualified from under any Federal or New South Wales law
• Talk to your trustee about personal insolvency options, and consider alternatives to bankruptcy that could have minimal consequences for your licence
• Contact the relevant licencing office to provide notification of your bankruptcy
• Consider any statutory obligations you may have to other bodies
• Take stock of assets you need to use in your work – see details of assets you can keep in bankruptcy