Bankruptcy Rules for Federal Court and Federal Circuit Court

In the matter of:

Applicant's Lawyer:
Respondent's/ supporting creditor's lawyer:

Key Issues:

File No:

 

 

 

ACT OF BANKRUPTCY (Bankruptcy Act s 40)

Fail to comply with Bankruptcy Notice  Bankruptcy Act s 40(1)(g)

 

Date issued: ____________________________________

 

Correct form Form 1 (Regs)

 

Debts $5,000 or more  Bankruptcy Act s 41(1)

 

Gives an address for payment in Australia  Form 1 pg2 at para 2

 

Final judgment or order not more than 6 years old Bankruptcy Act s 41(3)(c)(i)

 

Attaches copy of sealed or certified final judgment or order (or certificate of judgment or sealed or certified copy of final judgment or order) Reg 4.01, Form1 pg1 at item 1

 

Interest calculations with reference to relevant legislative basis for interest claim Form 1 Note C

 

Affidavit of service of Bankruptcy Notice Harmonised Bankruptcy Rules 4.04(1)(b) and Regulation 16.01

 

Mode of service: personal/ delivery/ postal/ email/ substituted service Bankruptcy Reg 16.01

 

 

Date posted/ emailed/ delivered complying with substituted service order ____________

 

 

Date served or deemed served: (postal rule)___________________________________

 

 

Served within 6 months of issue (or extension of BNotice by AFSA) Bankruptcy Reg 4.02A

 

 

Date posted/ emailed/ delivered comply with substituted service order

 

 

Date served or deemed served: (postal rule)___________________________________

 

 

Attaches copy of relevant bankruptcy notice

Unsatisfied execution of writ/warrant Bankruptcy Act s 40(1)(d)

 

Affidavit verifying petition attaches sealed or certified copy of the writ or warrant of execution returned unsatisfied. Harmonised Bankruptcy Rules 4.03(2)

Other act of bankruptcy

Date of act of bankruptcy: Bankruptcy Act s 40(1)

 

Correct in paragraph 4 of Creditor's Petition

 

Incorrect in paragraph 4 of Creditor's Petition and requires amendment

CREDITOR'S PETITION (s 43) Harmonised Bankruptcy Rules 4 Part 4

 

Date presented:_______________________________________

 

Presented within 6 months of date of act of bankruptcy Bankruptcy Act s 44(1)(c)

 

in correct form / correct spelling of parties etc Harmonised Bankruptcy Rules 4.02 BR Form B6

 

Debts $5000 or more (owing at act of bankruptcy) Bankruptcy Act s 44(1)(a)

 

Signed by creditor, solicitor or authorised officer (authority produced) BR Form B6

 

Clear and correct time, date and place of hearing endorsed on petition cover sheet BR Form B6 

AFFIDAVITS VERIFYING THE PETITION  Bankruptcy Act s 47,Harmonised Bankruptcy Rules 4.02, 4.03, 4.04

 

Verification of paragraphs 1,2,3 (and 4) by a person who knows the relevant facts by:

 

Using affidavit in Part 2 of Creditors Petition document Bankruptcy Act s 47 BR Form B6 (Part 2) Harmonised BankruptcyRules 4.02, 4.03, 4.04,4.02(2)

 

OR

 

Separate affidavit verifying paragraphs 1,2,3 by a person who knows the relevant facts and attaches copy, not original, of Creditor's Petition Harmonised Bankruptcy Rules 4.02(3)(b) 4.02(4)

 

Verification of paragraph 4

 

Paragraph 4: (If based on s40(1)(g) non-compliance with bankruptcy notice)Harmonised Bankruptcy Rules 4.04(1)

Results of search of FCA and FCC records stating:

 

 

that FCA and FCC records searched and no application filed in respect of bankruptcy notice Harmonised Bankruptcy Rules 4.04(1)(a)(i)

 

 

OR

 

 

details of any applications to set aside or extend time for compliance with  bankruptcy notice  and Harmonised Bankruptcy Rules 4.04(1)(a)(ii) and (iii)

 

 

Copy of order finally deciding any application on bankruptcy notice Harmonised Bankruptcy Rules4.04 (2)

AFFIDAVIT OF SERVICE OF CREDITOR'S PETITION & AFFIDAVITS

 

Date of service:_____________________________________

 

Served at least 5 working days before the first hearing dateHarmonised Bankruptcy Rules 4.05 - FCA r8.06, FCC r3.04

 

Personal service (by hand) of signed and sealed Creditor's Petition as originating process FCA r8.06, 10.01 FCC rr6.06. 6.07

 

 

OR

 

Compliance with any substituted service order FCA r10.24 FCC 6.14

 

Service of copy of affidavits verifying petition:

 

Paragraphs 1,2,3 or Part 2 of CP (Form 6) Harmonised Bankruptcy Rules 4.05 (b)

 

Paragraph 4 Harmonised Bankruptcy Rules 4.05(c)

 

Service of copy of affidavit of service of bankruptcy notice Harmonised Bankruptcy Rules 4.05(d)

 

Service of any Consent to act as Trustee by: _________________________________________

Harmonised Bankruptcy Rules 4.05(d)

 

If affidavit of service filed by fax, original retained by creditor unless directed to be filed

AFFIDAVIT OF FINAL SEARCHHarmonised Bankruptcy Rules 4.06

 

Search performed no earlier than day before the hearingHarmonised Bankruptcy Rules 4.06(3)

 

Attaches copy of National Personal Insolvency Index extract(s)Harmonised Bankruptcy Rules 4.06(3)(c)

 

States no details of debt agreement on date that Creditor's Petition presented and sets out details of any references in the Index to the debtorHarmonised Bankruptcy Rules 4.06(3)(b)

 

If affidavit of final search filed by fax, original retained by creditor unless directed to be filedHarmonised Bankruptcy Rules 4.07

SEARCH AFFIDAVIT (if applicable)

 

If original judgment requires payment of debt into court, search of court and states no amount or part amount paid into court as ordered.Harmonised Bankruptcy Rules 4.06(5)

AFFIDAVIT OF FINAL DEBT Harmonised Bankruptcy Rules 4.06

 

Debts $5000 or more (for petitions presented on or after 11 August 2010) Bankruptcy Act s 44(1)

 

Sworn as soon as practicable before hearing date by person who knows relevant factsHarmonised Bankruptcy Rules 4.06(4)(a)

 

States debts relied on still owing (and amount of debt)Harmonised Bankruptcy Rules 4.06(4)(b)

 

If affidavit of final debt filed by fax, original retained by creditor unless directed to be filed

PERSON INTENDING TO OPPOSE APPLICATION OR PETITION

 

Notice of Appearance Harmonised Bankruptcy Rules 2.05, 2.06(2)(a) BR Form B4

 

Notice of grounds of opposition Harmonised Bankruptcy Rules 2.06(2) BR Form B5

 

Affidavit in support of the grounds of oppositionHarmonised Bankruptcy Rules 2.06(2)(c)

 

Notices and affidavit served at least 3 days before hearing or with the leave of the CourtHarmonised Bankruptcy Rules 2.06(2)

COSTS Costs reserved on any other application (eg substituted service application)

ADJOURNMENT NOTIFICATION

ORDER MADE WITHIN 12 MONTHS OF PRESENTATION (or within time as extended)  Sequestration order Bankruptcy Act ss 52(4), 52(5) Harmonised Bankruptcy Rules 4.07 BR Form B7