Part 1 Preliminary
1.01 Name
of Rules [see Note
1]
These Rules are the Federal Court (Bankruptcy)
Rules 2005.
1.02 Commencement
These Rules commence on 6 February 2006.
1.03 Application of these Rules and other rules
of the Court
(1) Unless the Court otherwise orders:
(a) these Rules apply to a proceeding to which
the Bankruptcy Act applies; and
(b) Part 14 applies to a proceeding in the Court
under the Cross-Border Insolvency Act.
Note The Federal Magistrates Court does
not have jurisdiction under the Cross-Border Insolvency Act.
(2) The other rules of the Court apply, to the extent
that they are relevant and not inconsistent with these Rules:
(a) to a proceeding in the Court to which the
Bankruptcy Act applies; and
(b) to a proceeding in the Court under the Cross-Border
Insolvency Act that is commenced after 29 March 2009.
1.04 Interpretation
(1) In these Rules, unless the contrary intention
appears:
Act means the Federal Court of Australia
Act 1976.
Bankruptcy Act means the Bankruptcy Act
1966.
bankruptcy notice means a bankruptcy notice
issued by the Official Receiver under section 41 of the Bankruptcy Act.
Bankruptcy Regulations means the Bankruptcy
Regulations 1996.
Cross-Border Insolvency Act means the Cross-Border
Insolvency Act 2008 including, unless the contrary intention appears, the
Model Law.
Model Law means the Model Law on Cross-Border
Insolvency of the United Nations Commission on International Trade Law, the
English text of which is set out in Schedule 1 to the Cross‑Border
Insolvency Act, with the modifications set out in Part 2 of that Act.
(2) Unless the contrary intention appears, an expression
used in these Rules and in Order 1, rule 4 of the Federal Court Rules has the
same meaning in these Rules as it has in that rule.
(3) Subrule (2) has effect subject to rule 1.05.
1.05 Expressions
used in the Bankruptcy Act
Unless the contrary intention appears, an
expression used in these Rules and in the Bankruptcy Act has the same meaning
in these Rules as it has in the Bankruptcy Act.
Note The following expressions are
defined in subsection 5 (1) of the Bankruptcy Act:
· bankrupt
· books
· creditor
· creditor’s
petition
· debt agreement
· debtor’s
petition
· District
· examinable
affairs
· examinable
person
· National
Personal Insolvency Index
· Official
Receiver
· Official
Trustee
· personal
insolvency agreement
· petition
· proclaimed law
· property
· the trustee.
1.06 Forms
(1) In these Rules, a reference to a form followed by a
number is
a reference to the form so numbered in Schedule 1 to these Rules.
(2) It is sufficient compliance with these Rules in
relation to a document that is required to be in accordance with a form in
Schedule 1 if the document is substantially in accordance with the form
required or has only such variations as the nature of the case requires.
(3) If these Rules do not prescribe a form for a
particular purpose, a form prescribed in other rules of the Court for that
purpose may be used, but the document must have a title in accordance with Form
1.
Part 2 General
2.01 Originating
application and interim application
(1) Unless these Rules otherwise provide, a person must
make an application required or permitted by the Bankruptcy Act to be made to
the Court:
(a) if the application is not made in a
proceeding already commenced in the Court — by filing an application in
accordance with Form 2; and
(b) in any other case — by filing an interim
application in accordance with Form 3.
(2) If final relief has been granted in relation to a
proceeding, a person may make an application to the Court in relation to the
proceeding by filing an interim application in accordance with Form 3 unless
the Court otherwise directs.
(3) An application must state:
(a) each section of the Bankruptcy Act, each
regulation of the Bankruptcy Regulations or each section of the Cross-Border
Insolvency Act, under which the proceeding is brought; and
(b) the relief sought.
(4) An interim application must state:
(a) if appropriate, each section of the
Bankruptcy Act, each regulation of the Bankruptcy Regulations or each section
of the Cross-Border Insolvency Act, or each rule of Court under which the
application is made; and
(b) the relief sought.
Note Each application and appeal
mentioned below must be commenced by filing an application in accordance with
Form 2. The list is not exhaustive.
(a) an application for an order for substituted service of
a bankruptcy notice;
(b) an application, under section 50 of the Bankruptcy Act,
for the issue of a summons to a debtor, or an examinable person in relation to
the debtor, about the debtor and the debtor’s examinable affairs;
(c) an application, under section 78 of the Bankruptcy Act,
for the issue of a warrant for the arrest of a debtor or bankrupt;
(d) an appeal, under subsection 82 (5) of the Bankruptcy
Act, against an estimate by the trustee of the value of a debt or liability
provable in a bankruptcy;
(e) an application, under section 153B of the Bankruptcy
Act, for the annulment of a bankruptcy;
(f) an application, under subsection 157 (6) of the
Bankruptcy Act, objecting to the appointment of a person as a trustee;
(g) an appeal from a decision of a taxing officer,
appointed under subsection 167 (8) of the Bankruptcy Act, allowing or
disallowing a bill of costs or charges, or an item in such a bill.
(h) an application, under section 180 of the Bankruptcy
Act, for acceptance of a trustee’s resignation from the office of trustee of an
estate;
(i) an application, under section 183 of the Bankruptcy
Act, for release of a trustee from the trusteeship of an estate;
(j) an application, under section 185Q of the Bankruptcy
Act, for an order terminating a debt agreement;
(k) an application, under section 185T of the Bankruptcy
Act, for an order declaring that all, or a specified part, of a debt agreement
is void;
(l) an application, under section 222 of the Bankruptcy
Act, for an order setting aside a personal insolvency agreement;
(m) an application, under section 222 of the Bankruptcy Act
(as applied by section 76B of that Act), for an order setting aside a
composition or scheme of arrangement;
(n) an application, under section 222C of the Bankruptcy
Act, for an order terminating a personal insolvency agreement;
(o) an application, under section 222C of the Bankruptcy
Act (as applied by section 76B of that Act), for an order terminating a
composition or scheme of arrangement;
(p) an application, under section 252B of the Bankruptcy
Act, for the annulment of the administration of the estate of a deceased
person.
2.02 Exercise of
powers by Registrars
For the purposes of paragraph 35A (1) (h)
of the Act, if the Court or a Judge so directs, a Registrar may exercise a
power of the Court under a provision of the Bankruptcy Act mentioned in
Schedule 2.
2.03 Review of
exercise of powers by Registrars
(1) Subject to any direction by the Court or a Judge to
the contrary, an application under subsection 35A (5) of the Act for review of
the exercise of a power of the Court by a Registrar under subsection 35A (1) of
the Act must be made by motion on notice within 21 days after the day on which
the power was exercised.
(2) An application under paragraph 35A (7) (b) of the
Act may be made orally to the Registrar at the time that the Registrar is
hearing the application for the exercise of a power mentioned in subsection 35A
(1) of the Act.
2.04 Leave
to be heard
(1) The Court may grant leave to be heard in a
proceeding to a person who is not a party to the proceeding.
(2) The Court may grant the leave on conditions and may
revoke the leave at any time.
(3) The Court may order
the person to pay costs if:
(a) the granting of leave to the person causes
additional costs for a party to the proceeding; and
(b) the Court considers that the costs should be
paid by the person.
(4) The Court may also order that the person is not to
be further heard in the proceeding until the costs are paid or secured to the
Court’s satisfaction.
(5) The Court may grant leave or make an order under
this rule on the Court’s own initiative or on the application of a party or
another person having an interest in the proceeding.
(6) An application for leave or for an order must be
made by filing an interim application in accordance with Form 3.
2.05 Appearance at
application or examination
(1) A person who intends to appear at the hearing of an
application or petition, or take part in an examination, must file a notice of
appearance in accordance with Form 4.
(2) Rules 12 and 13 of Order 4 of the Federal Court
Rules (alteration of hearing date) do not apply to the hearing date fixed for a
creditor’s petition.
2.06 Opposition to
application, interim application or petition
(1) In this rule:
application includes an interim application.
(2) A person who intends to oppose an application or
petition must, at least 3 days before the date fixed for the hearing of the
application or petition or, with the leave of the Court, at the hearing:
(a) file a notice of appearance in accordance
with Form 4; and
(b) file a notice in accordance with Form 5
stating the grounds of opposition; and
(c) file an affidavit in support of the grounds
of opposition; and
(d) serve the notices and supporting affidavit on
the applicant.
Part 3 Bankruptcy notices
3.01 Substituted
service
An application for an order for substituted service
of a bankruptcy notice must be accompanied by:
(a) a copy of the bankruptcy notice; and
(b) an affidavit stating the grounds in support
of the application.
3.02 Setting aside
bankruptcy notice (Bankruptcy Act s 41 (6A), (6C) and (7))
(1) An application to set aside a bankruptcy notice must
be accompanied by:
(a) a copy of the bankruptcy notice; and
(b) an affidavit stating:
(i) the grounds in support of the
application; and
(ii) the date when the bankruptcy
notice was served on the applicant; and
(c) a copy of any application to set aside the
judgment or order in relation to which the bankruptcy notice was issued and any
material in support of that application.
(2) If the application is based on the ground that the
debtor has a counter‑claim, set‑off or cross demand mentioned in
paragraph 40 (1) (g) of the Bankruptcy Act, the affidavit must also
state:
(a) the full details of the counter‑claim,
set‑off or cross demand; and
(b) the amount of the counter‑claim, set‑off
or cross demand and the amount by which it exceeds the amount claimed in the
bankruptcy notice; and
(c) why the counter‑claim, set‑off
or cross demand was not raised in the proceeding that resulted in the judgment
or order in relation to which the bankruptcy notice was issued.
(3) The application and supporting documents must be
served on the respondent creditor within 3 days after the application is filed.
3.03 Extension
of time for compliance with bankruptcy notice (Bankruptcy Act s 41 (6A)
and (6C))
(1) An application for an extension of time for
compliance with a bankruptcy notice must be accompanied by:
(a) a copy of the bankruptcy notice; and
(b) an affidavit
stating:
(i) the grounds in support of the
application; and
(ii) the date when the bankruptcy
notice was served on the applicant; and
(c) a copy of any application to set aside the
judgment or order in relation to which the bankruptcy notice was issued and any
material in support of that application.
(2) The application may be made in the absence of a
party.
(3) If an order extending the time for compliance with a
bankruptcy notice is made, the following documents must be served on the
respondent creditor within 3 days after the order is made:
(a) the application;
(b) the order;
(c) the supporting documents.
(4) The application need be heard in open court only if
it is for an extension of time to a date after the first directions hearing.
Part 4 Creditors’ petitions
4.01 Application
of Part 4
This Part applies in relation to a creditor’s
petition seeking a sequestration order against the estate of a debtor.
4.02 Requirements
for creditor’s petition and supporting affidavit (Bankruptcy Act s 47)
(1) A creditor’s petition must be in accordance with
Form 6.
(2) The affidavit verifying the petition required by
subsection 47 (1) of the Bankruptcy Act may be in accordance with the
affidavit set out in Part 2 of Form 6.
(3) The petition must be
accompanied by:
(a) sufficient copies of the petition for
service and proof of service; and
(b) if the affidavit verifying the petition is
not included in the petition in accordance with Part 2 of Form 6 — an
affidavit of a person who knows the relevant facts verifying the petition; and
(c) if appropriate, the affidavits required by
rule 4.04.
(4) If the petition is accompanied by an affidavit of a
person who knows the relevant facts verifying the petition in accordance with
paragraph (3) (b), a copy of the petition must be attached to the
affidavit.
4.03 Creditor’s
petition founded on issue of execution against debtor (Bankruptcy Act s
40 (1) (d))
(1) If a creditor’s petition is founded on an act of
bankruptcy mentioned in paragraph 40 (1) (d) of the Bankruptcy Act,
the affidavit verifying the petition must state:
(a) that, in consequence of the issue of
execution against the debtor, property of the debtor has been sold by the
sheriff or held by the sheriff for 21 days; or
(b) that the writ or warrant of execution
relating to the act of bankruptcy has been returned unsatisfied.
(2) If paragraph (1) (b) applies, the affidavit
must have attached to it a sealed or certified copy of the writ or warrant of
execution returned unsatisfied.
4.04 Creditor’s
petition founded on failure to comply with bankruptcy notice etc (Bankruptcy
Act s 40 (1) (g))
(1) If a creditor’s petition is founded on an act of
bankruptcy mentioned in paragraph 40 (1) (g) of the Bankruptcy Act,
the petition must also be accompanied by:
(a) an affidavit stating:
(i) that the records of the Court and
the records of the Federal Magistrates Court have been searched and no
application in relation to the bankruptcy notice has been made; or
(ii) that an application was made in
the Court or in the Federal Magistrates Court, as applicable, for an order
setting aside the relevant bankruptcy notice and the application has been
finally decided; or
(iii) that an application was made in
the Court or in the Federal Magistrates Court, as applicable, for an order
extending the time for compliance with the bankruptcy notice and the
application has been finally decided; and
(b) an affidavit of service of the relevant
bankruptcy notice.
(2) If an application mentioned in subparagraph
(1) (a) (ii) or (iii) was made, a copy of the order finally deciding
the application must be attached to the affidavit required by paragraph
(1) (a).
4.05 Documents to be
served
Unless the Court otherwise orders, at least 5 days
before the date fixed for the hearing of a creditor’s petition, the applicant
creditor must serve on the respondent debtor:
(a) the creditor’s petition; and
(b) a copy of the affidavit, or affidavits,
verifying the petition required by subsection 47 (1) of the Bankruptcy
Act; and
(c) if applicable, a copy of the affidavit
required by paragraph 4.04 (1) (a); and
(d) if applicable, a copy of the affidavit of
service of the bankruptcy notice required by paragraph 4.04 (1) (b);
and
(e) a copy of any consent to act as trustee
filed under section 156A of the Bankruptcy Act.
4.06 Additional
affidavits to be filed before hearing
(1) Before the hearing of a creditor’s petition, the
applicant creditor must file the affidavits required by this rule.
(2) The applicant creditor must file an affidavit that:
(a) states that the documents required to be
served under rule 4.05 have been served and when and how they were served;
and
(b) has attached to it a copy of the documents
that were served and proof of service in relation to the documents.
(3) The applicant
creditor must file an affidavit of a person who has searched, or caused a
search to be made, in the National Personal Insolvency Index no earlier than
the day before the hearing date for the petition that:
(a) sets out the details of any references in
the Index to the debtor; and
(b) states that
there were no details of a debt agreement, about the debt on which the
applicant creditor relies, in the Index:
(i) on the day when the petition was
presented; and
(ii) on the day when the search was
made; and
(c) has attached to it a copy of the relevant
extract of the Index.
(4) The applicant
creditor must file an affidavit of a person who knows the relevant facts that:
(a) was sworn as soon as practicable before the
hearing date for the petition; and
(b) states that each debt on which the applicant
creditor relies is still owing.
(5) The applicant creditor must file a search affidavit
if the debt stated in the petition is an amount payable to the applicant
creditor under a judgment of a court that ordered the amount to be paid into
the court.
(6) In subrule (5):
search affidavit, in relation to a petition
stating a debt ordered to be paid into a court, means an affidavit of a person
who has searched in the proper office of the court, not earlier than the day
before the hearing date for the petition, stating whether the amount of the
debt, or part of that amount, has been paid as ordered.
4.07 Fax
copy may be filed in certain cases
If it is not practical for the applicant creditor
to file the original of an affidavit mentioned in rule 4.06:
(a) a fax copy of the affidavit may be filed;
and
(b) the applicant creditor must keep the original
affidavit and produce it as directed by the Court.
4.08 Notification
and entry of sequestration order
If the Court makes a sequestration order against
the estate of a debtor, the applicant creditor must:
(a) on the same day as the order is made, notify
the trustee, in writing, of his or her appointment; and
(b) unless the order is entered in the Court at
the time it is made, enter the order, within 1 day after it is made, by filing
an order in accordance with Form 7.
4.09 Entry of order
for dismissal etc of creditor’s petition
(1) This rule applies if the Court makes:
(a) an order dismissing a creditor’s petition;
or
(b) an order giving leave for a creditor’s
petition to be withdrawn; or
(c) an order under subsection 52 (5) of the
Bankruptcy Act.
(2) The applicant creditor must, unless the order is
entered in the Court at the time it is made, enter the order within 1 day after
it is made.
4.10 Service
of order
(1) This rule applies to an order of the Court that is
entered under rule 4.08 or 4.09.
(2) Within 2 days after the entry is stamped, the
applicant creditor must give a copy of the order to:
(a) any person who has consented to act as the
trustee of the debtor’s estate under section 156A of the Bankruptcy Act;
and
(b) the Official Receiver for the District in
which the order was made.
Part 5 Debtors’ petitions
5.01 Referral of
debtor’s petition
(1) A referral to the Court by the Official Receiver of
a debtor’s petition, for a direction to accept or reject the petition, must be
in accordance with Form 8.
Note For the circumstances in which the
Official Receiver must refer a debtor’s petition to the Court for a direction
to accept or reject the petition, see subsection 55 (3B), section 56C and
subsection 57 (3B) of the Bankruptcy Act.
(2) On receiving a referral, the Registrar must fix a
time, date and place for the hearing of the referral.
(3) At least 3 days before the date fixed for the
hearing, the Official Receiver must serve a sealed copy of the referral, and
notice of the time, date and place fixed for the hearing, on:
(a) each debtor who presented the petition; and
(b) each debtor listed in any relevant creditor’s
petition; and
(c) each creditor listed in the petition; and
(d) if subsection 56C (4) of the Bankruptcy
Act applies, the person administering the relevant proclaimed law.
(4) The notice required by subrule (3) must be in
accordance with the notice set out in Form 8.
Part 6 Examinations
Division 6.1 Interpretation
6.01 Definition
for Part 6
In this Part:
relevant person means a relevant person
within the meaning of section 81 of the Bankruptcy Act.
Note Examinable person is
defined in subsection 5 (1) of the Bankruptcy Act.
Division 6.2 Examination
of debtor or examinable person
6.02 Application
for summons (Bankruptcy Act s 50)
(1) An application to the Court for a debtor, or an
examinable person in relation to the debtor, to be summoned for examination
must be accompanied by an affidavit complying with this rule.
(2) The affidavit must
identify:
(a) the person sought to be examined; and
(b) if that person is an examinable person in
relation to a debtor, the debtor in relation to whom the examination is to be
conducted.
(3) If the application is
for a person to be summoned to produce books at the examination, the affidavit
must:
(a) identify the books that are to be produced;
and
(b) state the grounds on which the person is
required to produce the books.
(4) The affidavit must state whether the applicant has
made any inquiries about the issues to be dealt with at the proposed
examination and, if so, set out details of the inquiries, including:
(a) any request to the person to be examined to
provide information about the debtor’s affairs or produce books for inspection;
and
(b) if a request to provide information or
produce books has been made and complied with (including partly), details of
the compliance; and
(c) if a request to provide information or
produce books has been made and not complied with, details of the failure to
comply; and
(d) if no request to provide information or
produce books has been made, the reason.
6.03 Hearing
of application
The application may be heard in the absence
of a party or in closed court.
6.04 Requirements
for summons
(1) A summons must be in accordance with Form 9.
(2) A Registrar must:
(a) sign and affix the stamp of the Court to the
summons; and
(b) give it to the applicant for service on the
debtor or examinable person in relation to the debtor.
(3) If the summons requires the debtor, or examinable
person in relation to the debtor, to produce books at the examination, the
summons must identify the books that are to be produced.
6.05 Service
of summons
At least 8 days
before the date fixed for the examination, the applicant must:
(a) serve the summons on the relevant person
personally, or in another way directed by the Court or a Registrar; and
(b) give written notice of the date, time and
place fixed for the examination to each creditor of the relevant person of whom
the applicant has knowledge.
6.06 Application for
discharge of summons
(1) A debtor or an examinable person who is served with
a summons and wishes to apply for an order to discharge the summons may do so
by filing:
(a) an interim application in accordance with
Form 3 in the proceeding in which the summons was issued; and
(b) an affidavit setting out the grounds in
support of the application.
(2) As soon as possible after filing the interim
application and supporting affidavit, the debtor or examinable person must
serve a copy of each document:
(a) on the person who applied for the summons;
and
(b) if the person who applied for the summons is
not the Official Receiver, on the Official Receiver.
Division 6.3 Examination of relevant person
6.07 Application for
summons (Bankruptcy Act s 81)
(1) An application to the Court or a Registrar for a
relevant person to be summoned for examination in relation to the person’s
bankruptcy must be in accordance with Form 10.
(2) The application must be accompanied by:
(a) a draft of
each summons applied for; and
(b) an affidavit identifying:
(i) each relevant person to be
summoned; and
(ii) if the summons is to require the
relevant person to produce books at the examination, the books that are to be
produced.
Note A relevant person may be required to
produce books at an examination that are in the possession of the person and
relate to the person or to any of the person’s examinable affairs — see
subsection 81 (1B) of the Bankruptcy Act.
6.08 Hearing
of application
The application may be heard in the absence
of a party or in closed court.
6.09 Requirements
for summons
(1) A summons must be in accordance with Form 9.
(2) A Registrar must:
(a) sign and affix the stamp of the Court to the
summons; and
(b) give it to the applicant for service on the
relevant person.
(3) If the summons requires the relevant person to
produce books at the examination, the summons must identify the books that are
to be produced.
6.10 Service
of summons
At least 8 days
before the date fixed for the examination, the applicant must:
(a) serve the summons on the relevant person
personally, or in another way directed by the Court or a Registrar; and
(b) give written notice of the date, time and
place fixed for the examination to each creditor of the relevant person of whom
the applicant has knowledge.
6.11 Failure to
attend examination
If the relevant person does not attend the
examination in accordance with the summons, the Court or a Registrar may:
(a) adjourn the examination generally or to
another day, time or place; or
(b) discharge the summons.
Note For the power of the Court or a
Registrar to issue a warrant for the arrest of a relevant person who does not
attend an examination in accordance with a summons, see section 264B of the
Bankruptcy Act.
6.12 Application for
discharge of summons
(1) A relevant person who
is served with a summons and wishes to apply for an order to discharge the
summons may do so by filing:
(a) an interim application in accordance with
Form 3 in the proceeding in which the summons was issued; and
(b) an affidavit setting out the grounds in
support of the application.
(2) As soon as possible
after filing the interim application and supporting affidavit, the relevant
person must serve a copy of each document:
(a) on the person who applied for the summons;
and
(b) if the person who applied for the summons is
not the Official Receiver, on the Official Receiver.
Division 6.4 Examination
of examinable person
6.13 Application
for summons (Bankruptcy Act s 81)
(1) An application to the
Court or a Registrar for an examinable person to be summoned for examination in
relation to the bankruptcy of a relevant person must be in accordance with Form
10.
(2) A single application may be made for the summons of
2 or more examinable persons in relation to a relevant person’s bankruptcy.
(3) The application must be accompanied by:
(a) a draft of each summons applied for; and
(b) an affidavit that complies with subrule (4).
(4) The supporting
affidavit must:
(a) state whether
the applicant is:
(i) a creditor who has a debt provable
in the bankruptcy; or
(ii) the trustee of the relevant
person’s estate; or
(iii) the Official Receiver; and
(b) state the facts relied on by the applicant to
establish that each person to be summoned is an examinable person; and
(c) if the summons is to require an examinable
person to produce books at the examination:
(i) identify the books that are to be
produced; and
(ii) give
details of:
(A) any inquiry by the
applicant about the books to be produced; and
(B) any refusal by the
examinable person to cooperate with the inquiry.
Note An examinable person may be required
to produce books at an examination that are in the possession of the person and
relate to the relevant person or to any of the relevant person’s examinable
affairs — see subsection 81 (1B) of the Bankruptcy Act.
(5) The supporting affidavit may be filed in a sealed
envelope marked ‘Affidavit supporting application for summons for examination
under subsection 81 (1) of the Bankruptcy Act 1966’.
(6) If the supporting affidavit is filed in a sealed
envelope in accordance with subrule (5), the Registrar must not make it
available for public inspection.
6.14 Hearing
of application
The application may be heard in the absence
of a party or in closed court.
6.15 Requirements
for summons
(1) A summons must be in accordance with Form 9.
(2) A Registrar must:
(a) sign and affix the stamp of the Court to the
summons; and
(b) send it to the applicant for service on each
examinable person to be summoned for examination.
(3) If the summons requires an examinable person to
produce books at the examination, the summons must identify the books that are
to be produced.
6.16 Service of
summons
At least 8 days before the date fixed for the
examination, the applicant must:
(a) serve the summons on each examinable person
personally, or in another way directed by the Court or a Registrar; and
(b) give written notice of the date, time and
place fixed for the examination to each creditor of the relevant person of whom
the applicant has knowledge.
6.17 Application for
discharge of summons
(1) An examinable person who is served with a summons
and wishes to apply for an order to discharge the summons may do so by filing:
(a) an interim application in accordance with
Form 3 in the proceeding in which the summons was issued; and
(b) an affidavit setting out the grounds in
support of the application.
(2) As soon as possible after filing the interim
application and supporting affidavit, the examinable person must serve a copy
of each document:
(a) on the person who applied for the summons;
and
(b) if the person who applied for the summons is
not the Official Receiver, on the Official Receiver.
6.18 Conduct money
and witnesses expenses
(1) A person (other than a relevant
person) who, in accordance with a summons, attends an examination to give
evidence or produce documents is entitled to be paid:
(a) enough conduct money to cover the reasonable
expenses of travelling from and to the place where the person lives, and any
reasonable accommodation expenses; and
(b) reasonable expenses for the person’s
attendance as a witness.
(2) The expenses must be paid by the applicant for the
summons.
(3) The expenses mentioned in paragraph (1) (a)
must be paid a reasonable time before the person is to attend the examination.
(4) In this rule:
conduct money means a sum of money or its
equivalent, such as pre‑paid travel, sufficient to meet a person’s
reasonable expenses of attending an examination and returning after so
attending.
Part 7 Annulment or review of bankruptcy
Division 7.1 Annulment of bankruptcy
7.01 Application
of Division 7.1
This Division applies to the following
applications:
(a) an application under section 153B of the
Bankruptcy Act for the annulment of a bankruptcy;
(b) an application under section 252B of the
Bankruptcy Act for the annulment of the administration of the estate of a
deceased person.
7.02 Requirements
for application
(1) The application must set out the grounds on which
the annulment is sought.
(2) The application must be served on the trustee at
least 7 days before the hearing date fixed for the application.
7.03 Notice
to creditors
(1) The applicant must give notice of the application to
each person known to the applicant to be a creditor of the bankrupt or a
creditor of the estate of the deceased person.
(2) The notice must be in accordance with Form 11.
(3) The applicant must serve the notice on each creditor
at least 7 days before the hearing date fixed for the application.
7.04 Report
by trustee
(1) If directed by the Court, the trustee must prepare a
report for the periods before and after the bankruptcy or the administration of
the estate of the deceased person.
(2) If the report is in relation to a bankrupt, the
report must include information about:
(a) the bankrupt’s conduct; and
(b) the bankrupt’s examinable affairs; and
(c) the administration of the bankrupt’s estate.
(3) If the report is in relation to the estate of a
deceased person, the report must include information about the administration
of the deceased person’s estate.
(4) The report must:
(a) be in the form of an affidavit; and
(b) be filed at least 5 days before the date
fixed for the hearing of the application.
7.05 Entry
and service of annulment order
If the Court orders an annulment, the applicant
must:
(a) unless the order is entered in the Court at
the time it is made, enter the order within 1 day after it is made; and
(b) within 2 days after the entry is stamped,
give a copy of the order to the trustee and to the Official Receiver for the
District in which the order was made.
Division 7.2 Review of
sequestration order
7.06 Review
of Registrar’s decision
(1) This rule applies in relation to an application for
review of a decision by a Registrar to make a sequestration order against the
estate of a debtor (the bankrupt).
(2) The application must be served on the trustee at
least 7 days before the hearing date fixed for the application.
(3) The applicant must give notice of the application to
each person known to the applicant to be a creditor of the bankrupt.
(4) The notice must be in accordance with Form 12.
(5) The applicant must serve the notice on each creditor
at least 7 days before the hearing date fixed for the application.
(6) If directed by the Court, the trustee must prepare a
report in relation to the bankrupt in accordance with rule 7.04.
Part 8 Trustees
8.01 Objection to
appointment of trustee (Bankruptcy Act s 157 (6))
(1) An application objecting to the appointment of a
person as a trustee must be accompanied by an affidavit stating the grounds in
support of the application.
(2) At least 28 days before the hearing date fixed
for the application, the application and supporting affidavit must be served on
the trustee and any petitioning creditor.
(3) At least 14 days before the hearing date fixed for
the application, the application and supporting affidavit must be served on
each other person known to the applicant to be a creditor of the bankrupt or a
creditor of the estate of the deceased person.
Note Subsection 157 (7A) of the
Bankruptcy Act provides that, if the Court cancels the appointment of a trustee
and appoints another trustee, the creditor who filed the objection must give
the Official Trustee written notice of the cancellation and appointment as soon
as practicable.
8.02 Resignation
or release of trustee (Bankruptcy Act ss 180, 183)
(1) An application for
acceptance of a trustee’s resignation from the office of trustee of an estate,
or release of a trustee from the trusteeship of an estate, must be accompanied
by:
(a) an affidavit stating the grounds in support
of the application; and
(b) if the
application is for release of a trustee from the trusteeship of an estate:
(i) a statement giving details of the
realisation of the bankrupt’s property and the distribution of the estate by
the trustee; and
(ii) a copy of the most recent account
required under subsection 173 (1) of the Bankruptcy Act.
(2) The application and supporting documents must be
served on:
(a) the Official Receiver; and
(b) the bankrupt; and
(c) anyone else (including a creditor) as
ordered by the Court.
(3) If the Court makes the order sought, the trustee
must:
(a) unless the order is entered in the Court at
the time it is made, enter the order within 1 day after it is made; and
(b) within 2 days after the entry is stamped,
give a copy of the order to the Official Receiver for the District in which the
order was made.
Part 9 Debt agreements
9.01 Application
of Part 9
This Part applies to the following applications:
(a) an application under section 185Q of the
Bankruptcy Act for an order terminating a debt agreement;
(b) an application under section 185T of the
Bankruptcy Act for an order declaring that all, or a specified part, of a debt
agreement is void.
9.02 Requirements
for application
(1) If the application is made by a creditor who also
seeks a sequestration order, that must be stated in the application.
(2) The application must
be accompanied by:
(a) a copy of the debt agreement; and
(b) if the application is for an order
terminating a debt agreement — an affidavit stating the facts relied on to
satisfy the relevant prerequisite for making the order; and
(c) if the application is for an order declaring
that all, or a specified part, of a debt agreement is void — an affidavit
stating the facts relied on to establish the relevant ground for applying for
the order.
Note for paragraph (b) The
prerequisites for making an order of the kind mentioned in paragraph (b) are
set out in subsection 185Q (4) of the Bankruptcy Act.
Note for paragraph (c) The grounds for
applying for an order of the kind mentioned in paragraph (c) are stated in
subsection 185T (2) of the Bankruptcy Act.
9.03 Service
At least 5 days
before the date fixed for the hearing of the application, the application and
each supporting document must be served on:
(a) the debtor; and
(b) if the applicant is not the Official Trustee,
the Official Receiver for the District in which the application is made.
9.04 Notice to
creditors
(1) At least 5 days before the date fixed for the
hearing of the application, the applicant must serve a written notice of the
time, date and place fixed for the hearing on each creditor known to the
applicant.
(2) The notice must be in accordance with Form 13.
9.05 Entry and
service of order
If the Court makes an order under this Part, the
applicant must:
(a) unless the order is entered in the Court at
the time it is made, enter the order within 1 day after it is made; and
(b) within 2 days after the entry is stamped,
give a copy of the order to the Official Receiver for the District in which the
order was made.
Part 10 Personal insolvency agreements
10.01 Application of
Part 10
This Part applies to the following applications:
(a) an application under section 222 of the
Bankruptcy Act for an order setting aside a personal insolvency agreement;
(b) an application under section 222C of the
Bankruptcy Act for an order terminating a personal insolvency agreement;
(c) an application under section 222 of the
Bankruptcy Act (as applied by section 76B of that Act) for an order setting
aside a composition or scheme of arrangement;
(d) an application under section 222C of the
Bankruptcy Act (as applied by section 76B of that Act) for an order terminating
a composition or scheme of arrangement.
10.02 Requirements for
application
(1) If the application is made by a trustee or creditor
who also seeks a sequestration order, that must be stated in the application.
(2) The application must be accompanied by an affidavit
stating:
(a) the facts relied on to establish the
relevant ground for making the order; and
(b) if the application is for an order under
subsection 222 (2) or (5) — the facts relied on to satisfy the
relevant prerequisite for making the order.
Note for paragraph (a) The grounds for
making an order to which this Part applies are stated in subsections
222 (1), (2) and (5) and section 222C of the Bankruptcy Act.
Note for paragraph (b) The prerequisites
for making an order of the kind mentioned in paragraph (2) (b) are stated in
subsections 222 (4) and (7) of the Bankruptcy Act.
10.03 Service
Unless the Court otherwise orders, at least 5 days
before the date fixed for the hearing of the application, the application and
supporting affidavit must be served on:
(a) the debtor; and
(b) the trustee of the estate; and
(c) the Official Receiver for the District in
which the application is made.
Note The Court may dispense with service
on the debtor of notice of an application: see subsection 222 (12) of the
Bankruptcy Act.
10.04 Notice
to creditors
(1) At least 5 days before the date fixed for the
hearing of the application, the applicant must serve a written notice of the
time, date and place fixed for the hearing on each creditor named in the
debtor’s statement of affairs.
(2) The notice must be in accordance with Form 13.
10.05 Entry
and service of order
If the Court makes
an order under this Part, the applicant must:
(a) unless the order is entered in the Court at
the time it is made, enter the order within 1 day after it is made; and
(b) within 2 days after the entry is stamped,
give a copy of the order to the Official Receiver for the District in which the
order was made.
Part 11 Administration of estates of deceased persons
11.01 Creditor’s
petition (Bankruptcy Act s 244)
A creditor’s petition for the making of an order
for the administration of a deceased person’s estate must be:
(a) in accordance with Form 14; and
(b) accompanied by the affidavit verifying the
petition required by subsection 244 (5) of the Bankruptcy Act.
11.02 Additional
affidavits to be filed before hearing of creditor’s petition
(1) Before the hearing of a creditor’s petition, the
applicant creditor must file the affidavits required by this rule.
(2) The applicant must
file an affidavit stating:
(a) that the petition, the affidavit verifying
the petition, and any consent to act as trustee filed under section 156A
of the Bankruptcy Act, have been served on the legal personal representative of
the deceased person or on someone else directed by the Court; and
(b) how the documents were served.
(3) The applicant must
file an affidavit of a person who knows the relevant facts that:
(a) was sworn not earlier than the day before
the hearing date for the petition; and
(b) states that each debt on which the applicant
creditor relies is still owing.
(4) The applicant must
file an affidavit of a person who has searched in the National Personal
Insolvency Index no earlier than the day before the hearing date for the
petition that:
(a) sets out the details of any references in
the Index to the deceased person; and
(b) states that there were no details of a debt
agreement, in relation to the debt on which the applicant relies, in the Index
on the day on which the petition was presented; and
(c) has attached to it a copy of the relevant
extract of the Index.
(5) If a proceeding has been commenced in a court for
the administration of the deceased person’s estate under a State or Territory
law, the applicant creditor must file an affidavit of a person who knows the
relevant facts setting out details of the proceeding.
11.03 Administrator’s
petition (Bankruptcy Act s 247)
A petition by a person administering the estate of
a deceased person for an order for the administration of the estate must be in
accordance with Form 15.
Note Subsection 247 (1) of the
Bankruptcy Act provides that the petition must be accompanied by a statement,
in duplicate, of the deceased person’s affairs and of the administrator’s
administration of the deceased person’s estate. Regulation 11.01 of the Bankruptcy
Regulations sets out the particulars that must be included in the
statement.
11.04 Entry and
service of order
If the Court makes an order under this Part, the
applicant must:
(a) unless the order is entered in the Court at
the time it is made, enter the order within 1 day after it is made; and
(b) within 2 days after the entry is
stamped, give a copy of the order to the Official Receiver for the District in
which the order was made.
Part 12 Warrants
12.01 Arrest
of debtor or bankrupt (Bankruptcy Act s 78)
(1) An application for the issue of a warrant for the
arrest of a debtor or bankrupt must state the grounds for the issue of the
warrant.
(2) The application must be accompanied by an affidavit
stating the facts in support of the application.
(3) The warrant must be in accordance with Form 16.
(4) If a debtor or bankrupt is arrested under the
warrant, the person who carried out the arrest must immediately give notice of
the arrest to a Registrar in the Registry from which the warrant was issued.
Note See also subsection 130 (2) of
the Bankruptcy Act, which provides for the issue of a warrant for the seizure
of property connected with a debtor or bankrupt. A suggested form for such a
warrant is shown in Schedule 3 (Notes to these Rules).
12.02 Apprehension
of person failing to attend Court (Bankruptcy Act s 264B (1))
(1) A warrant for the apprehension of a person who fails
to comply with a summons must be in accordance with Form 17.
(2) The Court or a
Registrar may order that the warrant be kept in the Registry:
(a) for a stated time; and
(b) on any conditions that the Court or Registrar
considers appropriate.
(3) If a person is arrested under the warrant, the
person who carried out the arrest must immediately give notice of the arrest to
a Registrar in the Registry from which the warrant was issued.
Note For
the procedure to be followed if a person is apprehended under a warrant and it
is not practicable to bring the person before the Court or a Registrar on the
day the person is apprehended, see Part 14 of the Bankruptcy Regulations.
Part 13 Costs
Division 13.1 Orders for costs
13.01 Basis for costs
(1) Subject to Division 13.2, a person who is
entitled to costs in a proceeding to which the Bankruptcy Act applies is
entitled to costs in accordance with Order 62 of the Federal Court Rules unless
the Court otherwise orders.
(2) In making an order for costs, the Court may fix the
amount of the costs.
(3) If the Court fixes the amount of the costs, Order 62
of the Federal Court Rules does not apply to a bill of costs submitted for the
costs, except for the issue of a certificate of taxation.
Division 13.2 Short form
bills of costs
13.02 Application of Division 13.2
(1) This Division makes provision in relation to the
costs that may be charged by a legal practitioner for a creditor for work done
in relation to a petition against the estate of a debtor on the basis of an act
of bankruptcy mentioned in paragraph 40 (1) (g) of the Bankruptcy
Act.
(2) This Division does not apply if the Court fixes the
amount of the costs.
Note A debtor commits an act of
bankruptcy under paragraph 40 (1) (g) of the Act if the debtor does
not:
(a) comply with a bankruptcy notice issued on the
application of a creditor who has obtained a final judgment or final order
against the debtor; or
(b) satisfy the Court that he or she has a counter‑claim,
set‑off or cross demand equal to or more than the amount of the judgment
debt that he or she could not have set up in the action or proceeding in which
the judgment or order was obtained.
13.03 Short form bill
of costs
(1) If the Court makes a sequestration order against the
debtor’s estate, the legal practitioner may charge for costs the amount, applying
on the date when the petition was presented, stated in item 43B of Schedule 2
to the Federal Court Rules.
(2) If the petition is dismissed, and the creditor
obtains an order for costs, the legal practitioner may charge for costs the
amount, applying on the date when the petition was presented, stated in item
43C of Schedule 2 to the Federal Court Rules.
(3) The legal practitioner may also charge:
(a) if adjournment costs were reserved or
awarded on a day — the appropriate amount stated in item 36 or 37 of
Schedule 2 to the Federal Court Rules; and
(b) proper disbursements incurred for the
petition.
(4) If the legal practitioner charges an amount for
costs under subrule (1) or (2), Order 62 of the Federal Court Rules does not
apply to a bill of costs submitted for the costs, except for the issue of a
certificate of taxation.
13.04 Claim
for costs
(1) A legal practitioner who wishes to claim costs must
serve the documents mentioned in subrule (2) on:
(a) if the Court makes a sequestration
order — the trustee; or
(b) if the petition is dismissed — the
debtor.
(2) For subrule (1), the documents are:
(a) a bill of costs and disbursements; and
(b) a copy of any receipts, vouchers or journals
in support of the disbursements claimed.
(3) The bill need not include an itemised account of the
work or services performed.
(4) If the trustee or debtor disputes any of the costs
or disbursements, the trustee or debtor must give to the creditor a written
notice stating the costs or disbursements disputed.
(5) The notice must be given within 14 days after the
bill is served.
(6) At least 14 days after the legal practitioner serves
the documents on the trustee or debtor, the creditor may file in the Court:
(a) a copy of each document; and
(b) an affidavit of service of the bill of costs
and disbursements on the trustee or debtor; and
(c) a copy of any notice given by the trustee or
debtor under subrule (4).
13.05 Attendance at
taxation hearing
A creditor, the trustee, or a legal practitioner
representing the creditor or the trustee, may attend a taxation of the bill of
costs and disbursements only if a taxing officer directs the creditor, trustee
or legal practitioner to attend.
Part 14 Proceedings
under Cross‑Border Insolvency Act
14.01 Application
of this Part and other rules of the Court
Unless the Court otherwise orders:
(a) this Part applies to a proceeding in the
Court, under the Cross‑Border Insolvency Act, involving a debtor who is
an individual; and
(b) the rules in the other Parts of these Rules,
and the other rules of the Court, apply to a proceeding in the Court under the
Cross‑Border Insolvency Act if they are relevant and not inconsistent
with this Part.
Note See rule 1.04 for definitions of Cross‑Border
Insolvency Act and Model Law.
14.02 Expressions
used in the Cross‑Border Insolvency Act
(1) Unless the contrary intention appears, an expression
used in this Part and in the Cross‑Border Insolvency Act, whether or not
a particular meaning is given to the expression by the Cross‑Border Insolvency
Act, has the same meaning in this Part as it has in the Cross‑Border
Insolvency Act.
Note The following expressions used in this Part
(including in the notes to this Part) are defined in the Model Law as having
the following meanings:
establishment means any place of operations where
the debtor carries out a non‑transitory economic activity with human
means and goods or services.
foreign court means a judicial or other authority
competent to control or supervise a foreign proceeding.
foreign main proceeding means a foreign proceeding
taking place in the State where the debtor has the centre of its main
interests.
foreign non‑main proceeding means a foreign
proceeding, other than a foreign main proceeding, taking place in a State where
the debtor has an establishment as defined in the Model Law.
foreign proceeding
means a collective judicial or administrative proceeding in a foreign State,
including an interim proceeding, pursuant to a law relating to insolvency in
which proceeding the assets and affairs of the debtor are subject to control or
supervision by a foreign court, for the purpose of reorganization or
liquidation.
foreign representative means a person or body,
including one appointed on an interim basis, authorized in a foreign proceeding
to administer the reorganization or the liquidation of the debtor’s assets or
affairs or to act as a representative of the foreign proceeding.
(2) This Part is to be interpreted in a manner that
gives effect to the Cross‑Border Insolvency Act.
14.03 Application
for recognition
(1) An application by a foreign representative for
recognition of a foreign proceeding under article 15 of the Model Law must be
made by filing an application in accordance with Form 2.
(2) The application must:
(a) be accompanied by the statements mentioned
in article 15 of the Model Law and in section 13 of the Cross‑Border
Insolvency Act; and
(b) name the foreign representative as the
applicant and the debtor as the respondent; and
(c) be accompanied by an affidavit verifying the
matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in
section 13 of the Cross‑Border Insolvency Act.
(3) When filing the application, the foreign
representative must file, but need not serve, an interim application seeking
directions as to service, and the Court may give any directions about service,
and make any incidental orders, that it thinks just.
(4) The applicant must serve a copy of the application
and the other documents mentioned in subrule (2):
(a) unless the Court otherwise orders — on
each respondent (if any) to the proceeding as soon as practicable after filing
an application and, in any case, at least 5 days before the date fixed for
hearing; and
(b) on any other persons the Court may direct at
the hearing of the interim application.
(5) A person who intends to appear before the Court at
the hearing of an application for recognition must file and serve the documents
mentioned in rule 2.05.
14.04 Application
for provisional relief under article 19 of the Model Law
(1) Any application by the applicant for provisional
relief under article 19 of the Model Law must be made by filing an interim
application in accordance with Form 3.
(2) Unless the Court otherwise orders, the interim
application and any supporting affidavit must be served on each respondent at
least 3 days before the date fixed for the hearing of the interim application.
14.05 Registered
trustee’s consent to act
If an application is made for an order:
(a) under article 19 or 21 of the Model Law to entrust
the administration or realisation of all or part of the debtor’s assets to a
person designated by the Court (other than the foreign representative); or
(b) under article 21 to entrust the distribution
of all or part of the debtor’s assets to a person designated by the Court
(other than the foreign representative);
then, unless the Court otherwise orders, the person must:
(c) be a registered trustee; and
(d) have filed a Consent to Act, in accordance
with Form 18, that specifies an address for service for the person within
Australia.
Note registered trustee is defined in subsection
5 (1) of the Bankruptcy Act.
14.06 Notice
of filing of application for recognition
(1) Unless the Court
otherwise orders, the applicant in a proceeding mentioned in rule 14.03 must:
(a) send a notice of the filing of the
application in accordance with Form 19 to each person whose claim to be a
creditor of the respondent is known to the applicant; and
(b) publish a notice of the filing of the
application:
(i) in accordance with Form 19; and
(ii) once in a daily newspaper
circulating generally in the State or Territory where the respondent has his or
her principal, or last known, place of residence.
(2) The Court may
direct the applicant to publish a notice in accordance with Form 19 in a daily
newspaper circulating generally in any State or Territory not described in
subparagraph (1) (b) (ii).
14.07 Notice
of order for recognition, withdrawal etc
(1) If the Court makes an order for recognition of a
foreign proceeding under article 17 of the Model Law, or makes any order under
article 19 or 21 of the Model Law, the applicant must, as soon as practicable
after the order is made, do all of the following:
(a) have the order entered;
(b) serve a copy of the entered order on the
respondent;
(c) send a notice of the making of the order in
accordance with Form 20 to each person whose claim to be a creditor of the
respondent is known to the applicant;
(d) publish a notice of the making of the order
in accordance with Form 20, in accordance with subparagraph
14.06 (1) (b) (ii).
(2) The Court may
direct the applicant to publish the notice in accordance with Form 20 in a
daily newspaper circulating generally in any State or Territory not described
in subparagraph 14.06 (1) (b) (ii).
(3) If the application for recognition is withdrawn or
dismissed, the applicant must, as soon as practicable, do all of the following:
(a) for a
dismissal — have the order of dismissal entered;
(b) serve a copy
of the entered order of dismissal or notice of the withdrawal, on the
respondent;
(c) send a notice
of the dismissal or withdrawal in accordance with Form 21 to each person whose
claim to be a creditor of the respondent is known to the applicant;
(d) publish a
notice of the dismissal or withdrawal in accordance with Form 21, in accordance
with subparagraph 14.06 (1) (b) (ii).
(4) The Court may
direct the applicant to publish the notice in accordance with Form 21 in a
daily newspaper circulating generally in any State or Territory not described
in subparagraph 14.06 (1) (b) (ii).
14.08 Relief
after recognition
(1) If the Court has made an order for recognition of a
foreign proceeding, any application by the applicant for relief under paragraph
1 of article 21 of the Model Law must be made by filing an interim application,
and any supporting affidavit, in accordance with Form 3.
(2) Unless the Court otherwise orders, an interim
application under subrule (1) and any supporting affidavit must be served at
least 3 days before the date fixed for the hearing of the interim application
on the following persons:
(a) the respondent;
(b) any person that the Court directed be served
with the originating process by which the application for recognition was made;
(c) any other person that the Court directs.
(3) A person who intends to appear before the Court at
the hearing of an application under subrule (1) must file and serve the
documents mentioned in rule 2.05.
14.09 Application
to modify or terminate an order for recognition or other relief
(1) This rule applies to:
(a) an application under paragraph 4 of article
17 of the Model Law for an order modifying or terminating an order for
recognition of a foreign proceeding; and
(b) an application under paragraph 3 of article
22 of the Model Law for an order modifying or terminating relief granted under
article 19 or 21 of the Model Law.
(2) The application must be made by filing an interim
application in accordance with Form 3.
(3) An interim application and any supporting affidavit
must be served on:
(a) for an application under paragraph (1) (a) —
the respondent and other persons who were served with, or filed a notice of
appearance in relation to, the application for recognition; and
(b) for an application under paragraph (1) (b) —
the respondent and other persons who were served with, or filed a notice of
appearance in relation to, the application for relief under article 19 or 21.
(4) Unless the Court otherwise orders, the applicant
must:
(a) send a notice of the filing of the
application in accordance with Form 22 to each person whose claim to be a
creditor of the respondent is known to the applicant; and
(b) publish a notice of the filing of the
application in accordance with Form 22, in accordance with subparagraph 14.06
(1) (b) (ii).
(5) The Court may direct the applicant to publish the
notice in accordance with Form 22 in a daily newspaper circulating generally in
any State or Territory not described in subparagraph 14.06 (1) (b) (ii).
(6) A person who intends to appear before the Court at
the hearing of the application must file and serve the documents mentioned in
rule 2.05.
Schedule
1 Forms
Form 1 Title
(subrule 1.06 (3))
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN THE
MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
Form 2 Application
(rules 2.01 and 14.03)
APPLICATION
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
NOTICE TO RESPONDENT
[Complete this section if there is a respondent]
TO the respondent of [address]:
This application has been set down for the
time and place stated below. If you or your legal representative do not attend
the Court at that time, the application may be dealt with and judgment may be
given, or an order made, in your absence. As soon after the time mentioned as
the business of the Court will allow, any of the following may happen:
(a) the application may be heard;
(b) directions may be given for the further conduct of the
proceeding;
(c) any
application for interim orders may be heard.
The
following information must appear at the foot of the first page of this
application.
Filed by the applicant
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
Before any attendance at Court, you must file a notice
of appearance in the Registry.
Time and date for hearing: [to be entered by
Registry unless fixed by Court]
Place: [address of Court]
Date:
[signed, District Registrar/Deputy District
Registrar/Authorised Officer]
*Registrar/*Deputy District Registrar/*Authorised
Officer
A. FINAL ORDERS SOUGHT BY APPLICANT
On the grounds stated in the supporting affidavit or
statement of claim, the applicant seeks the following orders:
[Specify in numbered paragraphs all the final
orders sought]
1.
2.
3.
B. INTERIM ORDERS SOUGHT BY APPLICANT
[Complete this section
if you also seek interim orders]
The applicant seeks the following interim orders:
[Specify in numbered paragraphs all the interim
orders sought]
1.
2.
3.
Date:
[signed, applicant or applicant’s lawyer]
*Applicant/*Applicant’s lawyer
C. ABRIDGMENT OF SERVICE
[Complete this section if the time for
service has been abridged]
The time by which this application is to be served has
been abridged by order made on [date] to [time and date].
D. SERVICE
It is not intended to serve this application on any
person.
OR
It is intended to serve this application on each
person listed below:
[name of each person on whom application is to be
served]
Note An application must state each
section of the Bankruptcy Act, regulation of the Bankruptcy Regulations or
section of the Cross-Border Insolvency Act under which the proceeding is
brought — see paragraph 2.01 (3) (a).
* Omit
if inapplicable
Form 3 Interim
application
(rules 2.01, 2.04, 6.06,
6.12, 6.17, 14.04, 14.08 and 14.09)
INTERIM APPLICATION
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s) for interim order]
Applicant(s) for interim order
[name of respondent(s) for interim order]
Respondent(s) for interim order
NOTICE
This interim application has been set down for the
time and place stated below. If you or your legal representative do not attend
the Court at that time, the interim application may be dealt with and an order
made in your absence.
Time and date for hearing: [to be entered by Registry
unless fixed by Court]
Place: [address of Court]
The
following information must appear at the foot of the first page of this
application.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
DETAILS OF INTERIM ORDERS
On the grounds stated in the supporting affidavit, the
applicant [name], seeks the following interim orders:
[Specify
in numbered paragraphs all the interim orders sought]
1.
2.
3.
Date:
[signed by the applicant making this application or
the applicant’s lawyer]
*Applicant/*Applicant’s lawyer
Note An interim application must state
each section of the Bankruptcy Act, regulation of the Bankruptcy Regulations or
section of the Cross-Border Insolvency Act under which the proceeding is
brought — see paragraph 2.01 (4) (a).
* Omit
if inapplicable
Form 4 Notice of
appearance
(rules 2.05, 2.06)
NOTICE OF APPEARANCE
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
[Name] of [address], [occupation],
appears.
Solicitor [name]
Address:
Telephone: Fax number:
E‑mail address:
Solicitor’s agent [name]
Address:
Telephone: Fax number:
E‑mail address:
Address
for service:
The
following information must appear at the foot of the first page of this notice.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
Date:
[signed, respondent/respondent’s lawyer or
supporting creditor/supporting creditor’s lawyer]
*Respondent/*Respondent’s lawyer/*Supporting
creditor/*Supporting creditor’s lawyer
* Omit
if inapplicable
Form 5 Notice stating
grounds of opposition to application, interim application or petition
(rule 2.06)
NOTICE STATING
GROUNDS OF OPPOSITION TO APPLICATION, INTERIM APPLICATION OR PETITION
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
[Name
of opponent], [specify capacity of opponent, eg creditor, trustee],
intends to oppose the *application/*interim application/*petition on the
following grounds:
1. } [set
out grounds of opposition]
2. }
3. }
An affidavit supporting the grounds of opposition is
filed with this notice.
This notice is filed by [name of lawyer for
opponent] for [name of opponent].
The
opponent’s address for service is: [address for service].
The
following information must appear at the foot of the first page of this notice.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
Date:
[signed, opponent or
opponent’s lawyer]
*Opponent/*Opponent’s lawyer
* Omit
if inapplicable
Form 6 Creditor’s
petition
(rule 4.02)
CREDITOR’S
PETITION
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
NOTICE TO RESPONDENT
TO the respondent of [address]:
This petition has been set down for hearing by the
Court at the time, date and place stated below. If you or your legal
representative do not attend the Court at that time, the petition may be dealt
with in your absence and a sequestration order making you bankrupt may be made.
If you wish to appear at the hearing, you must file
and serve a notice of appearance.
The
following information must appear at the foot of the first page of this petition.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
If you wish to appear at the hearing and
oppose this petition, you must:
(a) enter an appearance in accordance with Form 4,
and file a notice stating grounds of opposition to the petition in accordance
with Form 5 and an affidavit supporting the grounds; and
(b) serve a copy of each document on the creditor
at the address for service stated below not less than 3 days before the date
for the hearing of this petition stated below; and
(c) attend at the Court on the date for the
hearing stated below.
Time
and date for hearing: [to be entered by Registry]
Place:
[address of Court]
Date:
[signed, Registrar]
Registrar
PART 1 PETITION
The applicant creditor [name and address of
applicant creditor] applies to the Court for a sequestration order
under section 43 of the Bankruptcy Act 1966 against the estate of [name,
address and occupation of respondent debtor].
1. The respondent debtor owes the applicant
creditor the amount of [$ amount] for [statement of reason for,
and details of, the debt, including details of any judgment debt].
2. The applicant creditor does not hold security
over the property of the respondent debtor.
OR
The applicant creditor holds security over
the property of the respondent debtor to the value of [$ amount]
and consisting of [statement of particulars of security],
and:
(a) is willing to surrender this security for the
benefit of creditors generally if a sequestration order is made against the
respondent debtor;
OR
(b) the value of the property is [$ amount],
which leaves an unsecured debt of [$ amount].
Note If there is more than 1 applicant
creditor, the form may be appropriately amended.
3. At the time when the act of bankruptcy was
committed, the respondent debtor:
*(a) was personally present in Australia;
*(b) was ordinarily resident in Australia;
*(c) had a dwelling house or place of business in
Australia;
*(d) was carrying on business in Australia either
personally or by an agent or manager;
*(e) was a member of a firm or partnership carrying
on business in Australia by means of partners or agent or manager.
4. The following act of bankruptcy was committed
by the respondent debtor within 6 months before presentation of this petition:
[Include the following paragraph if the act of
bankruptcy is failure to comply with a bankruptcy notice]
The respondent debtor failed to comply on or
before [date of act of bankruptcy] with the requirements of a bankruptcy
notice served on *him/*her on [date of service of bankruptcy notice] or
to satisfy the Court that *he/*she had a counter‑claim, set‑off or
cross demand equal to or more than the sum claimed in the bankruptcy notice,
being a counter‑claim, set‑off or cross demand that *he/*she could
not have set up in the action in which the judgment referred to in the
bankruptcy notice was obtained.
[If the act of bankruptcy is an act of
bankruptcy mentioned in section 40 of the Bankruptcy Act 1966 (other than
a failure to comply with a bankruptcy notice), give full details of the act of
bankruptcy including details of any judgment.]
5. The applicant creditor provides the following
information, to the extent it is known to the applicant creditor, for use by
the Insolvency and Trustee Service Australia:
(a) any alias used by the respondent debtor;
(b) the date of birth of the respondent debtor;
(c) the business name of the respondent debtor;
(d) the business address of the respondent debtor.
Note Completion of paragraph 5 is
optional.
Date:
[signed, applicant or applicant’s lawyer]
*Applicant/*Applicant’s lawyer
This petition is filed by [name of lawyer for
petitioner] for [name of petitioner].
The
petitioner’s address for service is: [address for service].
PART 2 AFFIDAVIT VERIFYING CREDITOR’S
PETITION
On [date],
I, [name, address and occupation of deponent], *say on oath/*affirm:
1. I am the applicant [or I am a director
of the applicant or I am a [occupation] of the applicant and, as
such, have access to the books and records of the applicant and am authorised
to make this affidavit on the applicant’s behalf].
2. The statements made in paragraphs 1, 2 and 3
of the creditor’s petition are within my own knowledge true.
3. In respect of the statements made in
paragraph 4 of the creditor’s petition, I say the respondent failed, within 21
days after service of the bankruptcy notice, to pay the debt or make an
arrangement to *my/*the applicant’s satisfaction for payment of the debt.
*Sworn/*affirmed
at [place]
Before
me:
[signed,
person before whom deponent swears or affirms affidavit]
Note 1 If necessary, this affidavit, and
any other affidavit verifying the petition, may be filed as a separate document
in accordance with Form 20 of the Federal Court Rules with the heading
prescribed by subrule 1.06 (3) of these Rules. If this affidavit is filed
as a separate document, a copy of the petition must be attached to it.
Note 2 If
the petition is founded on an act of bankruptcy mentioned in paragraph
40 (1) (d) of the Bankruptcy Act, the information required by
rule 4.03 may be included in this affidavit (or, if an affidavit of the
kind mentioned in Note 1 is filed, in that affidavit).
Note 3 If
the petition is founded on an act of bankruptcy mentioned in paragraph
40 (1) (g) of the Bankruptcy Act, the information required by
rule 4.04 may be included in this affidavit (or, if an affidavit of the
kind mentioned in Note 1 is filed, in that affidavit).
Note 4 A creditor must give a copy of
this petition to the Official Receiver within 3 working days after
presentation — see subregulation 4.05 (1) of the Bankruptcy
Regulations.
* Omit if inapplicable
Form 7 Sequestration
order
(rule 4.08)
SEQUESTRATION
ORDER
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
*JUDGE/*FEDERAL
MAGISTRATE/*REGISTRAR:
DATE
OF ORDER:
WHERE
MADE:
THE COURT ORDERS THAT:
1. A sequestration order be made against the
estate of [name of debtor].
2. The applicant creditor’s costs be taxed and
paid from the estate of the respondent debtor in accordance with the Bankruptcy
Act 1966.
The
Court notes that the date of the act of bankruptcy is [date].
Date
entry stamped:
[signed, Registrar]
Registrar
The
following information must appear at the foot of the first page of this order.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
‡Note
Subsection 35A (5) of the Act
provides that a party to proceedings in which a Registrar has exercised any
of the powers of the Court under subsection 35A (1) of the Act may,
within the time prescribed by the Rules of Court, or within any further time
allowed in accordance with the Rules of Court, apply to the Court to review
that exercise of power.
Rule
2.03 provides that, subject to any direction by the Court or a Judge to the
contrary, an application under subsection 35A (5) of the Act for review of
the exercise of a power of the Court by a Registrar under subsection 35A (1)
of the Act must be made by motion on notice within 21 days after the day
on which the power was exercised. An applicant seeking a review can apply to a
Judge to waive the requirement that the application for review be made by
motion on notice (see Order 1, rule 8 of the Federal Court Rules).
* Omit if inapplicable
‡ Omit this note if the orders have not been made by a
Registrar.
Form 8 Referral of
debtor’s petition
(rule 5.01)
REFERRAL OF DEBTOR’S
PETITION
IN THE [name of Court]
REGISTRY: [name of Registry]
GENERAL
DIVISION
No.
of [year]
IN THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
The debtor [name of debtor] has
presented a debtor’s petition to the Official Receiver.
Creditor’s petition No. [number] of
[year] is pending against a number of debtors or a partnership
and includes this debtor.
A copy of the debtor’s petition and statement of
affairs is filed with this referral.
The Court is asked to give a direction to accept or
reject the petition.
Date:
[signed, Official Receiver]
Official Receiver
The
following information must appear at the foot of the first page of this referral.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
NOTICE TO OFFICIAL RECEIVER, DEBTORS AND APPLICANT
CREDITOR
This referral has been set down for
hearing by the Court at:
Time and date: [to be entered by
Registry]
Place: [address of Court]
Date:
[signed, Registrar]
Registrar
Form 9 Summons for examination
(rules 6.04, 6.09,
6.15)
SUMMONS FOR EXAMINATION
IN THE
[name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
Time
and date for examination: [to be inserted by Registry]
Place:
[address of Court]
TO: [name and address of person summoned]
1. You are required to attend before *the
Court/*a Registrar/*a magistrate at the time, date and place stated above to be
examined on oath under *section 50/*section 81 of the Bankruptcy Act
1966 and to give evidence in relation to the examinable affairs of [name
of bankrupt or debtor].
2. You are also required to attend at any time,
date and place to which the examination is adjourned if you have been given
written notice of that time, date and place.
The
following information must appear at the foot of the first page of this summons.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
3. You are also required to bring
the following books with you and produce them at the examination:
[list books required]
Date:
[signed, Registrar]
Registrar
This summons was issued on the application of [name
of applicant], [specify the capacity of the applicant under subsection
81 (1) of the Bankruptcy Act 1966, eg creditor, trustee], whose
address for service is [address].
* Omit if inapplicable
Note 1 Subsection 5 (1) of
the Bankruptcy Act 1966 defines examinable affairs, in
relation to a person, to mean:
(a) the person’s dealings, transactions, property and affairs;
and
(b) the financial affairs of an associated entity of the
person, in so far as they are, or appear to be, relevant to the bankrupt or to
any of his or her conduct, dealings, transactions, property and affairs.
[Use the
following note for a summons addressed to the bankrupt. Otherwise omit it.]
Note 2 If you do not comply with
this summons, a warrant for your apprehension (arrest) may be issued under
section 264B of the Bankruptcy Act 1966.
[Use the
following notes for a summons addressed to a person who is not the bankrupt.
Otherwise omit them.]
Note 2 If you do not comply with
this summons, a warrant for your apprehension (arrest) may be issued under
section 264B of the Bankruptcy Act 1966. However, a warrant will
not be issued if you were not given a reasonable amount for expenses.
Note 3 You may apply to have this
summons discharged by filing an interim application and supporting affidavit.
Form 10 Application for
summons to examine relevant person or examinable person
(rules 6.07, 6.13)
APPLICATION FOR
SUMMONS TO EXAMINE RELEVANT PERSON OR EXAMINABLE PERSON
Bankruptcy Act 1966, section 81
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
On the grounds set out in the supporting affidavit,
the applicant requests the *Court/*Registrar to issue a summons under section
81 of the Bankruptcy Act 1966 in accordance with the accompanying draft
summons(es) to the following:
A. Relevant
person(s)
*to give evidence:
OR
*to give evidence and produce
documents:
[set
out the name and address of each relevant person and, if appropriate, the
details of the documents to be produced]
The
following information must appear at the foot of the first page of this
application.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
B. Examinable
persons
*to give evidence:
OR
*to give evidence and produce documents:
[set out the name and address of each
examinable person and, if appropriate, the details of the documents to be
produced]
Date:
[signed, applicant or
applicant’s lawyer]
*Applicant/*Applicant’s lawyer
* Omit if inapplicable
Form 11 Notice to
creditors of annulment application
(rule 7.03)
NOTICE
TO CREDITORS OF ANNULMENT APPLICATION
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
I, [name], *applicant/*applicant’s lawyer, give
notice that [name of debtor or person administering estate of deceased
debtor] will be applying for the annulment of the bankruptcy.
The application is to be heard at:
Time and date: [to be inserted by
Registry]
Place: [address of court]
If a creditor wishes to take part in the hearing, the
creditor must file and serve a notice of appearance at least 3 days before the
hearing date stated above.
* Omit if inapplicable
The
following information must appear at the foot of the first page of this notice.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
Form 12 Notice to creditors of application for review of
Registrar’s decision to make sequestration order
(rule 7.06)
NOTICE TO CREDITORS
OF APPLICATION FOR REVIEW OF REGISTRAR’S DECISION TO MAKE SEQUESTRATION ORDER
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
I, [name], *applicant/*applicant’s lawyer, give
notice that [name of debtor or person administering estate of deceased
debtor] will be applying for review of the decision by Registrar [name]
on [date of decision] to make a sequestration order against the estate
of [name of debtor].
The application is to be heard at:
Time and date: [to be inserted by
Registry]
Place: [address of court]
If a creditor wishes to take part in the hearing, the
creditor must file and serve a notice of appearance at least 3 days before the
hearing date stated above.
* Omit if inapplicable
The
following information must appear at the foot of the first page of this notice.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
Form 13 Notice to creditors
(rules 9.04, 10.04)
NOTICE TO CREDITORS
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
I, [name], *applicant/*applicant’s lawyer, give
notice that an application for [state nature of application, including any
application for sequestration order] has been made to the Court by [name
of applicant], [state the capacity of the applicant, eg creditor, debtor
or trustee, and relevant section of the Bankruptcy Act 1966].
The application is to be heard at:
Time and date: [to be inserted by
Registry]
Place: [address of court]
Copies of the application and affidavits in support
are available from the applicant at the address stated below.
If you wish to take part in the proceeding, a notice
of appearance must be filed and served 3 days before the hearing.
* Omit if inapplicable
The
following information must appear at the foot of the first page of this notice.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
Form 14 Applicant
creditor’s petition for administration of deceased person’s estate
(rule 11.01)
APPLICANT CREDITOR’S PETITION FOR ADMINISTRATION OF DECEASED PERSON’S
ESTATE
Bankruptcy
Act 1966, section 244
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant creditor(s)]
Applicant creditor(s)
[name of respondent debtor(s)]
Respondent debtor(s)
NOTICE TO RESPONDENT
TO: [legal personal representative
of the deceased respondent debtor or other person as directed by the Court
under subsection 244 (9) of the Bankruptcy Act 1966]
[address]
This petition has been set down for hearing by the
Court at the time, date and place stated below. If you or your legal
representative do not attend the Court at that time, the petition may be dealt
with in your absence and an order made for the administration of the estate of
the deceased respondent debtor.
The
following information must appear at the foot of the first page of this petition.
Filed by
Name:
Address for service:
Telephone: Fax number:
E‑mail address:
If you wish to appear at the hearing, you must file
and serve a notice of appearance.
If you wish to appear at the hearing and oppose this
petition, you must:
(a) enter an appearance in accordance with Form 4,
and file a notice stating grounds of opposition to the petition in accordance
with Form 5 and an affidavit supporting the grounds; and
(b) serve a copy of each document on the applicant
creditor at the address for service stated below not less than 3 days before
the date for the hearing of this petition stated below; and
(c) attend at the Court on the date for the
hearing stated below.
Time
and date for hearing: [to be entered by Registry]
Place:
[address of Court]
Date:
[signed, Registrar]
Registrar
PETITION
The applicant creditor, [name and address of
creditor], applies to the Court for an order of administration in
bankruptcy of the estate of the late [name of deceased respondent debtor]
who died on [date of death].
1. The estate of the deceased respondent debtor
owes the applicant creditor the amount of [$ amount] for [statement
of reason for the debt]. This debt is a liquidated sum payable immediately
or at a certain future time.
2. The applicant creditor does not
hold security over the property of the deceased respondent debtor.
OR
The applicant creditor holds security
over the property of the deceased respondent debtor to the value of [$
amount] and consisting of [statement of particulars of security],
and:
(a) is willing to surrender this security for the
benefit of creditors generally if a sequestration order for administration of
the estate in bankruptcy is made;
OR
(b) the value of the property is [$ amount],
which leaves an unsecured debt of [$ amount].
Note If there is more than 1 creditor,
this form may be appropriately amended.
3. At the time of the respondent
debtor’s death, the respondent debtor:
*(a) was personally present in Australia;
*(b) was ordinarily resident in Australia;
*(c) had a dwelling house or place of business in
Australia;
*(d) was carrying on business in Australia either
personally or by an agent or manager;
*(e) was a member of a firm or partnership carrying
on business in Australia by means of partners or agent or manager.
4. [Also state any details of the status of
any authorisation to administer the deceased person’s estate.]
Date:
[signed, petitioner or lawyer for petitioner]
*Petitioner/*Petitioner’s lawyer
* Omit if inapplicable
Form 15 Administrator’s
petition
(rule 11.03)
ADMINISTRATOR’S PETITION
Bankruptcy
Act 1966, section 247
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
NOTICE TO RESPONDENT
TO: [legal personal representative
of the deceased respondent debtor]
[address]
This petition has been set down for hearing by the
Court at the time, date and place stated below. If you or your legal
representative do not attend the Court at that time, the petition may be dealt
with in your absence and an order made for the administration of the estate of
the deceased respondent debtor.
If you wish to appear at the hearing, you must file
and serve a notice of appearance.
The
following information must appear at the foot of the first page of this petition.
Filed by
Name:
Address for service:
Telephone: Fax
number:
E‑mail address:
If you wish to appear at the hearing and oppose this
petition, you must:
(a) enter an appearance in accordance with Form 4,
and file a notice stating grounds of opposition to the petition in accordance
with Form 5 and an affidavit supporting the grounds; and
(b) serve a copy of each document on the applicant
creditor at the address for service stated below not less than 3 days before
the date for the hearing of this petition stated below; and
(c) attend at the Court on the date for the
hearing stated below.
Time
and date for hearing: [to be entered by Registry]
Place:
[address of Court]
Date:
[signed, Registrar]
Registrar
PETITION
The applicant, [name and address of administrator],
applies to the Court for an order of administration in bankruptcy of the estate
of the late [name of the deceased person] who died on [date of death].
1. The applicant is the administrator of the
deceased debtor’s estate.
2. The affairs of the deceased debtor and of my
administration of the estate are set out in the documents accompanying this
petition. To the best of my belief, it is a true and complete statement.
Note If there is more than 1
administrator, the form may be appropriately amended.
3. At the time of the debtor’s
death, the debtor:
*(a) was personally present in Australia;
*(b) was ordinarily resident in Australia;
*(c) had a dwelling house or place of business in
Australia;
*(d) was carrying on business in Australia either
personally or by an agent or manager;
*(e) was a member of a firm or partnership carrying
on business in Australia by means of partners or agent or manager.
Date:
[signed, petitioner]
Petitioner
Before:
[signature, name, address
and occupation of witness]
* Omit if
inapplicable
Form 16 Arrest warrant
(rule 12.01)
ARREST WARRANT
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
TO: [name of officer], a
*member/*special member of the Australian Federal Police and to all other
members and special members of the Australian Federal Police and to all
constables of police throughout the Commonwealth and to the Governor or Keeper
of Her Majesty’s Gaol at [place] and to the Governor or Keeper of any of
Her Majesty’s Gaols within the Commonwealth.
BECAUSE of evidence taken on oath, the Court has
reason to believe that [name of debtor or bankrupt], against whom a
bankruptcy notice has been issued, has absconded with a view to avoiding
payment of *his/*her debts [or otherwise as the case may be in accordance
with the wording of section 78 of the Bankruptcy Act 1966].
THIS warrant therefore requires and authorises you, [name
of officer], and all other constables to whom this warrant is addressed, to
take [name of debtor or bankrupt] and to deliver *him/*her to the
Governor or Keeper of Her Majesty’s Gaol at [place], and you the
Governor or Keeper are to receive [name of debtor or bankrupt] and keep
*him/*her safely in the gaol and in your custody until the Court otherwise
orders.
THIS warrant also requires and authorises you, [name
of officer], and all other constables to whom this warrant is addressed, to
seize any property, books, documents, papers and writings in the possession of
the *debtor/*bankrupt, and to deliver them into the custody of [full name
and address of person named in Court’s order] to be kept by that person
until the Court makes an order for their disposal.
Dated:
[signed, Registrar]
Registrar
* Omit if inapplicable
Form 17 Apprehension
warrant
(rule 12.02)
APPREHENSION WARRANT
Bankruptcy
Act 1966, section 264B
IN
THE [name of Court]
REGISTRY:
[name of Registry]
GENERAL DIVISION
No. of [year]
IN
THE MATTER OF [name of debtor or bankrupt estate]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
TO: [name of officer], a *member/*special
member of the Australian Federal Police and to all other members and special
members of the Australian Federal Police and to all constables of police
throughout the Commonwealth and to the Governor or Keeper of Her Majesty’s Gaol
at [place], and to the Governor or Keeper of any of Her Majesty’s Gaols
within the Commonwealth.
BY summons dated [date], and directed to [full
name and address of person named in summons], [person named in summons]
was required to appear personally before *the Court/*a Registrar/*a Magistrate
at [time] at [address at which examination or other proceeding was to
have been held], AND which summons was, as has been proved on oath, served
on [name of person] on [date].
‡AND a reasonable amount was tendered to [name of
person] for expenses, AND, without reasonable excuse, the person failed to
appear as required by the summons.
THIS warrant therefore requires and authorises you, [name
of officer], and all other constables to whom this warrant is addressed, to
take [name of person] and bring *him/*her up for examination to the Court [address] or a registry of the Court that
is convenient.
THIS warrant also requires and authorises you, if [name
of person] cannot immediately be brought before *the Court/*a Registrar/*a
Magistrate, to deliver *him/*her to the Governor or Keeper of Her Majesty’s
Gaol at a convenient place and you the
Governor or Keeper are to receive [name of person] and keep *him/*her
safely in the gaol and in your custody until *the Court/*a Registrar/*a
Magistrate otherwise orders, and you are to produce *him/*her before *the
Court/*a Registrar/*a Magistrate as *the Court/*a Registrar/*a Magistrate
directs.
THIS warrant also informs you, [name of officer],
and all other constables to whom this warrant is addressed, that subsection
264B (4) of the Bankruptcy Act 1966 empowers you to break and
enter any place or building for the purpose of executing this warrant.
Dated:
[signed, Registrar]
Registrar
* Omit
if inapplicable
‡ Omit if the summons is to a
relevant person under section 81 of the Bankruptcy Act 1966
Form 18 Consent to act
as designated person
(rule 14.05)
[Title]
I, [name], of [address], a registered
trustee, consent to be appointed by the Court and to act as the person
designated by the Court under *article 19/*article 21 of the Model Law to
administer or realise all or part of the assets of [name of debtor or
bankrupt estate] or under article 21 to distribute all or part of the
assets of [name of debtor or bankrupt estate].
I am not aware of any conflict of
interest or duty that would make it improper for me to act as the person
designated by the Court.
The hourly rates currently charged in
respect of work done as the person
designated by the Court by me, and by my
partners and employees who may perform work in this administration, are set out
below or in the Schedule which is attached to this Consent.
I acknowledge that my appointment by the Court does
not constitute an express or implied approval by the Court of these hourly
rates.
Date:
[signed, registered trustee]
registered trustee
* Omit
if inapplicable
Schedule
[description of hourly rate(s)]
Form 19 Notice of
filing of application for recognition of foreign proceeding
(rule 14.06)
IN THE
FEDERAL COURT OF AUSTRALIA No. of [year]
[Name of debtor or bankrupt estate]
TO all the creditors of [name of respondent debtor]
TAKE NOTICE that:
1. An application under the Cross‑Border
Insolvency Act 2008 for recognition of a foreign proceeding in relation to
[name of debtor or bankrupt estate] was commenced by the applicant, [name
of applicant], on [date of filing of application] and will be heard
by the Court at [address of Court] at [time] on [date].
Copies of documents filed may be obtained from the applicant’s address for
service.
2. The applicant’s address for service is [name
and address of applicant’s legal practitioner or, if there is no legal practitioner,
address of the applicant].
3. Any person intending to appear at the hearing
must file a notice of appearance, in accordance with the prescribed form,
together with any affidavit on which the person intends to rely, and serve a
copy of the notice and any affidavit on the applicant at the applicant’s
address for service at least 3 days before the date fixed for the hearing.
4. If you are a foreign creditor you must file
in the registry of the Court at the address mentioned in paragraph 1 an affidavit
setting out the details of any claim, secured or unsecured, that you may have
against the debtor or bankrupt estate above at least 3 days before the date
fixed for the hearing.
Date:
Name of
applicant or applicant’s legal practitioner: [name]
Form 20 Notice of making of order under Cross‑Border
Insolvency Act 2008
(rule 14.07)
IN THE
FEDERAL COURT OF AUSTRALIA No. of [year]
[Name of debtor or
bankrupt estate]
TO all the creditors of [name
of debtor or bankrupt estate]
TAKE NOTICE that:
1. On [date], the [name of Court]
in Proceeding No. of [year], commenced by the applicant [name of
applicant], made the following orders under the Cross‑Border
Insolvency Act 2008 in relation to [name of debtor or bankrupt estate]:
[insert details of order].
2. The applicant’s address for service is [name
and address of applicant’s legal practitioner or, if there is no legal
practitioner, address of the applicant].
3. The name and address of the foreign
representative is [insert name and address].
*4. The name and address of the person entrusted
with distribution of the assets is [insert name and address].
Date:
Name of applicant or applicant’s
legal practitioner: [name]
* Omit if inapplicable
Form 21 Notice of
dismissal or withdrawal of application for recognition of foreign proceeding
(rule 14.07)
IN THE FEDERAL COURT OF AUSTRALIA No. of [year]
[Name of debtor or bankrupt estate]
TO all the creditors of [name
of debtor or bankrupt estate]
TAKE NOTICE that the application under the Cross‑Border
Insolvency Act 2008 for recognition of a foreign proceeding in relation to
[name of debtor or bankrupt estate] commenced by the applicant, [name
of applicant], on [date of filing of application] was *dismissed/*withdrawn
on [date of dismissal/withdrawal]
Date:
Name of person giving
notice or of person’s legal practitioner: [name]
* Omit if inapplicable
Form 22 Notice of
filing of application to modify or terminate an order for recognition or other
relief
(rule 14.09)
IN THE FEDERAL COURT OF AUSTRALIA No. of [year]
[Name of debtor or bankrupt estate]
TO all the creditors of [name of debtor or bankrupt estate]
TAKE NOTICE that:
*1. An application under the Cross‑Border
Insolvency Act 2008 for an order *modifying/*terminating an order for
recognition of a foreign proceeding in relation to [name of debtor or
bankrupt estate] was filed by the applicant, [name of applicant], on
[date of filing of interim application] and will be heard by . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . at [address of Court] at [time] on [date].
Copies of documents filed may be obtained from the applicant’s address for
service.
*1. An application under the Cross‑Border
Insolvency Act 2008 for an order *modifying/*terminating relief granted
under *article 19/*article 21 of the Model Law in relation to [name of
debtor or bankrupt estate] was filed by the applicant, [name of
applicant], on [date of filing of interim application] and will be
heard by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . at [address of Court] at [time]
on [date]. Copies of documents filed may be obtained from the
applicant’s address for service.
2. The applicant’s address for service is [name
and address of applicant’s legal practitioner or, if there is no legal
practitioner, address of the applicant].
3. Any person intending to appear at the hearing
must file a notice of appearance (if the person has not already done so), in
accordance with the prescribed form, together with any affidavit on which the
person intends to rely, and serve a copy of the notice (if applicable) and any
affidavit on the applicant at the applicant’s address for service at least 3
days before the date fixed for the hearing.
Date:
Name
of applicant or applicant’s legal practitioner: [name]
* Omit if inapplicable
Schedule
2 Powers of the Court that may be
exercised by a Registrar
(rule 2.02)
|
Item
|
Provision of the
Bankruptcy Act 1966
|
Description
(for information only)
|
|
1
|
subsection 30 (1) (only for an application to set
aside a bankruptcy notice)
|
Power to set aside a bankruptcy notice
|
|
2
|
section 33
|
Adjournment, amendment of process and extension and
abridgment of time
|
|
3
|
paragraph 40 (1) (g)
|
Power to grant leave to serve a bankruptcy notice outside
Australia
|
|
|
4
|
subsection 41 (6A)
|
Extension of time for compliance with a bankruptcy notice
|
|
5
|
subsection 43 (1)
|
Power to make a sequestration order
|
|
6
|
subsection 46 (2)
|
Power to make a sequestration order against 2 or more
debtors
|
|
7
|
subsection 47 (2)
|
Power to give leave to withdraw a creditor’s petition
after presentation
|
|
8
|
section 49
|
Power to permit the substitution of another creditor as
petitioner
|
|
9
|
subsection 52 (1)
|
Power to make a sequestration order against the estate of
a debtor
|
|
10
|
subsection 52 (2)
|
Power to dismiss a creditor’s petition
|
|
11
|
subsection 52 (3)
|
Power to stay all proceedings under a sequestration order
for a period not exceeding 21 days
|
|
12
|
subsection 52 (5)
|
Power to extend a period at the expiration of which a
creditor’s petition lapses
|
|
13
|
section 81
|
Powers in relation to examinations
|
|
14
|
subsection 206 (1)
|
Power to adjourn a creditor’s petition if creditors have
passed a resolution for a deed and to subsequently dismiss the petition
|
|
15
|
subsection 244 (9)
|
Power to direct service of a creditor’s petition on a
person under Part XI
|
|
16
|
subsection 244 (10)
|
Power to dispense with service of a creditor’s petition
under Part XI
|
|
17
|
subsection 244 (11)
|
Power to make an order for the administration of an estate
under Part XI
|
|
18
|
subsection 244 (12)
|
Power to dismiss a creditor’s petition under Part XI
|
|
19
|
subsection 244 (13)
|
Power to give leave to present petition under Part XI
|
|
20
|
subsection 247 (1A)
|
Power to make an order for the administration of the
estate of a deceased person on the petition of a person administering the
estate
|
|
21
|
section 264B
|
Power to issue a warrant
|
|
22
|
subsection 309 (2)
|
Power to order substituted service
|
Schedule
3 Notes to these Rules
(rule 12.01)
Note 1 — see rule 12.01
SEARCH WARRANT
Bankruptcy
Act 1966, section 130
IN
THE [name of Court]
REGISTRY:
[name of Registry]
No. of [year]
IN
THE MATTER OF [name of bankrupt]
[name of applicant(s)]
Applicant(s)
[name of respondent(s)]
Respondent(s)
TO: [name of officer], a *member/*special
member of the Australian Federal Police and to all other members and special
members of the Australian Federal Police and to all constables of police
throughout the Commonwealth and to any other person specified in Schedule 1.
ON the basis of:
(a) an application made by the trustee of the
estate of [name of bankrupt] under subsection 130 (1) of the Bankruptcy
Act 1966 for the issue of a warrant under subsection 130 (2) of the
Act in relation to premises situated at [address of premises], including
any garage or storage area within the boundaries of the premises; and
(b) information given to me by affidavit that
there are reasonable grounds for suspecting that there is on or in the premises
the following property (relevant property):
(i) property of the bankrupt (including but not
limited to furniture, paintings, prints, collectables, porcelain, silver, gold,
jewellery, etchings, keys, safes, computers, message taking machines, the
contents of any safe, vehicles, plant and equipment, computer tapes, message
banks and electronic storage machines);
(ii) property that may be connected with, or
related to, the bankrupt’s examinable affairs (including but not limited to
furniture, painting, prints, collectables, porcelain, silver, gold, jewellery,
etchings, keys, safes, computers, message taking machines, the contents of any
safe, vehicles, plant and equipment, computer tapes, message banks and
electronic storage machines);
(iii) books of the bankrupt or an associated entity
of the bankrupt relevant to any of the bankrupt’s examinable affairs (including
but not limited to policies of insurance, storage receipts or other documents
or instruments of storage, journals, correspondence and documents); and
(c) any further information given to me, either
orally or by affidavit, about the grounds on which the issue of this warrant
has been sought;
I, [full name], issue this warrant authorising
you, [name of officer], together with any other person to whom this
warrant is addressed:
(d) *at any time of the day or night/*between the
hours of [hour] and [hour] to enter on or into the premises,
using such force as is necessary for the purpose and is reasonable in the
circumstances; and
(e) to search the premises for relevant property;
and
(f) to break open, and search for relevant
property, any cupboard, drawer, chest, trunk, box, package or other receptacle,
whether a fixture or not, on or in the premises; and
(g) to take possession of, or secure against
interference, any relevant property found on or in the premises; and
(h) to deliver to the trustee, or to a person
authorised in writing by the trustee for the purpose, any property of which
possession is taken under the warrant.
THIS warrant ceases to have effect at the end of [day
that is not later than 7 days after the day of issue of the warrant].
Dated:
[signed, *Judge/*Federal Magistrate]
*Judge/*Federal Magistrate
* Omit if inapplicable
Schedule 1
[name of any other person to whom the
warrant is addressed]