Federal Court Rules (Amendment) (Cth)

Statutory Rules 1997

No. 174 1

__________________

Federal Court Rules 2(Amendment)

WE, Judges of the Federal Court of Australia, make the following Rules of Court under the Federal Court of Australia Act 1976.

Dated 20 June 1997.

M.E.J. BLACK C.J.
R.M. NORTHROP J.
J.F. GALLOP J.
J.D. DAVIES J.
J.S. LOCKHART J.
B.A. BEAUMONT J.
M.R. WILCOX J.
P.R.A. GRAY J.
J.A. MILES J.
D.M. RYAN J.
R.S. FRENCH J.
M.R. EINFELD J.
D.G. HILL J.
M.F. O’LOUGHLIN J.
D.F. O’CONNOR J.
T.J. HIGGINS J.
P.C. HEEREY J.
D.P. DRUMMOND J.
A.P. WHITLAM J.
C.J.S.M. CARR J.
M.F. MOORE J.
C.M. BRANSON J.
K.E. LINDGREN J.
B.J.M. TAMBERLIN J.
R. SACKVILLE J.
S.M. KIEFEL J.
P.D. FINN J.
R.A. SUNDBERG J.
S.R. MARSHALL J.
J.R.F. LEHANE J.
A.M. NORTH J.
R.N. MADGWICK J.
R. MERKEL J.
J.R. MANSFIELD J.
A.H. GOLDBERG J.
A.R. EMMETT J.
Judges of the Federal
Court of Australia

W.G. SODEN

Registrar

____________

1. Commencement

1.1These Rules commence on 31 July 1997.

2. Amendment

2.1 The Federal Court Rules are amended as set out in these Rules.

3. Order 77 (Bankruptcy proceedings)

3.1 Omit the Order, substitute:

“ORDER 77—BANKRUPTCY PROCEEDINGS

“Division 1—Introductory

Citation

“1. This Order may be cited as the Bankruptcy Rules.

Definitions for Order 77

“2. In this Order:

‘Bankruptcy Act’ or ‘Act’ means the Bankruptcy Act 1966;

‘bankruptcy notice’ means a bankruptcy notice issued by the Official Receiver under section 41 of the Bankruptcy Act.

Expressions used in the Bankruptcy Act

“3. Unless the contrary intention appears, an expression used in this Order and in the Bankruptcy Act has the same meaning in this Order as it has in the Bankruptcy Act.

Application of this Order and other Orders

“4. (1) This Order applies to a proceeding in the Court to which the Bankruptcy Act applies.

“(2) The other Orders of these Rules apply, so far as they are relevant and not inconsistent with this Order, to a proceeding in the Court to which the Bankruptcy Act applies.

“Division 2—General

First page of a document—Form 148

“5. A document in a proceeding under this Order must be headed in accordance with Form 148.

Commencement of a proceeding

“6. (1) Unless otherwise provided in this Order, a proceeding to which this Order applies must be commenced by filing an application in accordance with Form 5.

“(2) The application must state each section of the Bankruptcy Act under which the proceeding is brought.

Exercise of powers by Registrars

“7. The Court or a Judge may direct a Registrar to exercise a power of the Court under a provision of the Bankruptcy Act specified in column 2 of an item in Part 3 of the Third Schedule.

Review of decisions by Registrars

“8.(1) In this rule:

‘decision’ means a decision, direction or act of a Registrar.

“(2) An application for review of a decision must be made within 21 days of the date of the decision.

“(3) A decision may be reviewed by the Court or a Judge.

“(4) However, if the decision relates to a matter mentioned in section 31 of the Bankruptcy Act, it must be reviewed by a Judge sitting in Court.

Leave to be heard

“9. (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) 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;

the Court may order the person to pay the costs.

“(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:

(a)
on the application of a party to the proceeding or a person having an interest in the proceeding; or
(b)
on the Court’s own initiative.

“(6) An application for leave or for an order under this rule must be made by filing a notice of motion.

Appearance at application or examination

“10.(1) This rule applies to a person who intends to:

(a)
appear at the hearing of an application or petition; or
(b)
take part in an examination.

“(2) The person must enter an appearance in accordance with Order 9.

“(3) Rules 12 and 13 of Order 4 (which relate to the alteration of a hearing date) do not apply to the hearing date fixed for a creditor’s petition.

Notice of intention to oppose application or petition

“11. (1) This rule applies to a person who intends to oppose an application or petition.

“(2) At least 3 days before the date fixed for the hearing of the application or petition or, with the Court’s consent, at the hearing, the person must:

(a)
enter an appearance, in accordance with Order 9; and
(b)
file a notice, in accordance with Form 149, stating the grounds of opposition to the application or petition; and
(c)
file an affidavit in support of the grounds of opposition; and
(d)
serve the notice and supporting affidavit on the applicant.

“Division 3—Bankruptcy notices

Substituted service

“12. (1) An application for an order for substituted service of a bankruptcy notice must be made by filing an application in accordance with Form 5.

“(2) The application must be accompanied by:

(a)
a copy of the bankruptcy notice; and
(b)
an affidavit stating the grounds in support of the application.

Requirements of application to set aside, or extend time for complying with, notice (Act, s 41 (6A), (6C) and (7))

“13. (1) This rule applies to:

(a)
an application to set aside a bankruptcy notice; or
(b)
an application for an extension of the time for complying with a bankruptcy notice.

“(2) An application 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.

“(3) If the application is to set aside a bankruptcy notice 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 date when the bankruptcy notice was served on the debtor; and
(b)
the full details of the counter-claim, set-off or cross demand; and
(c)
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
(d)
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.

“(4) The application must be served on the respondent creditor within 3 days after it is filed.

Making and hearing of application for extension of time (Act, s 41 (6A))

“14. (1) An application for an extension of the time to comply with a bankruptcy notice may be made ex parte.

“(2) The application need only be heard in open court if it is for an extension of time to a date after the first directions hearing.

“Division 4—Creditors’ petitions

Application of Division 4

“15. This Division applies to a creditor’s petition seeking a sequestration order against the estate of a debtor.

Requirements of creditor’s petition and supporting affidavits (Act, s 47)

“16. (1) The petition must be in accordance with Form 150.

“(2) The petition must be accompanied by:

(a)
sufficient copies of the petition for service and for annexure to any affidavits of service; and
(b)
an affidavit of a person who knows the relevant facts verifying the petition.

Petition founded on issue of execution against debtor (Act, s 40 (1) (d))

“17. (1) If the 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 subparagraph (1) (b) applies, the affidavit must have attached to it a sealed or certified copy of the writ or warrant of execution returned unsatisfied.

Petition founded on failure to comply with bankruptcy notice or set up counter-claim, etc (Act, s 40 (1) (g))

“18. (1) If the petition is founded on an act of bankruptcy mentioned in paragraph 40 (1) (g) of the Bankruptcy Act, the affidavit verifying the petition must state:

(a)
that an application was made for an order setting aside the relevant bankruptcy notice and that the application has been finally decided; or
(b)
that an application was made for an order extending the time to comply with the bankruptcy notice and that the application has been finally decided; or
(c)
that the Court records have been searched and that no application in relation to the bankruptcy notice has been made.

“(2) The affidavit must have attached to it:

(a)
a copy of the relevant bankruptcy notice; and
(b)
an affidavit of service of the bankruptcy notice; and
(c)
a copy of the final judgment, or final order, on the basis of which the bankruptcy notice was served on the debtor; and
(d)
if an application mentioned in paragraph (1) (a) or (b) has been made—a copy of the order finally deciding the application.

Additional affidavits to be filed by applicant before hearing

“19. (1) Before the hearing of a creditor’s petition, the applicant creditor must file the affidavits required by:

(a)
subrules (2) to (4); and
(b)
if subrule (5) applies—that subrule.

“(2) The applicant must file an affidavit stating that the following documents have been served, and how they were served:

(a)
the creditor’s petition;
(b)
the affidavits verifying the petition required by section 47 (1) of the Bankruptcy Act;
(c)
any consent to act as trustee lodged under section 156A of the Act.

“(3) 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:

(a)
setting out the details of any references in the Index to the debtor; and
(b)
stating 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 when the petition was presented; and
(c)
that has attached to it a copy of the relevant extract of the Index.

“(4) The applicant must file an affidavit of a person who knows the relevant facts:

(a)
sworn as soon as practicable before the hearing date for the petition; and
(b)
stating that each debt on which the applicant relies is still owing.

“(5) If the debt stated in the petition is an amount payable to the petitioner under a judgment that ordered the amount to be paid into the court that gave the judgment, the applicant must file an affidavit of a person who has searched in the proper office of that court, not earlier than the day before the hearing date for the petition, stating whether the amount, or part of the amount, has been paid into the court in accordance with the judgment.

“(6) If it is not practical for the applicant to file the original of an affidavit mentioned in subrule (2), (3), (4) or (5):

(a)
a facsimile copy of the affidavit may be filed; and
(b)
the original affidavit must be filed within 2 days after the hearing at which the facsimile affidavit is used.

Summons to debtor or examinable person for examination (Act, s 50)

“20. (1) An application 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 the person sought to be examined 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 the person is to produce; 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.

“(5) A summons issued under section 50 of the Act must be in accordance with Form 151.

Sequestration order to be entered and served

“21. (1) This rule applies if the Court makes a sequestration order.

“(2) The applicant creditor must:

(a)
advise the trustee, in writing, of his or her appointment on the same day as the order is made; and
(b)
enter the order, by filing an order in accordance with Form 152, within 1 day after the order is made.

“(3) Within 2 days after the order is entered, the applicant creditor must give a copy of the order to:

(a)
the trustee; and
(b)
the Official Receiver for the District in which the order was made.

Order dismissing petition to be entered and served

“22. (1) This rule applies if the Court dismisses a creditor’s petition.

“(2) The applicant creditor must enter the order within 1 day after the order is made.

“(3) Within 2 days after the order is entered, 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.

“Division 5—Debtors’ petitions

Application of Division 5

“23. This Division applies to a referral by the Official Receiver to the Court of a debtor’s petition for a direction to accept or reject the petition.

[NOTE: See subsection 55 (3B), section 56C and subsection 57 (3B) of the Bankruptcy Act 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.]

Form of referral—Form 153

“24. A referral must be in accordance with Form 153.

Hearing of referral

“25.(1) On receiving a referral of a debtor’s petition, the Registrar must fix a time, date and place for the hearing of the referral.

“(2) 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.

“(3) The notice must be in accordance with the notice included in Form 153.

“Division 6—Discovery of bankrupt’s property

“Subdivision A—Definition

Definition for Division 6

“26. In this Division:

‘relevant person’ means a relevant person within the meaning of section 81 of the Bankruptcy Act.

“Subdivision B—Summons of relevant person for examination

Application of Subdivision B (Act, s 81 (1))

“27.This Subdivision applies to an application to the Court or a Registrar for a relevant person to be summoned for examination in relation to the person’s bankruptcy.

Application for summons—Form 154

“28.(1) The application must be made to the Registrar in accordance with Form 154.

“(2) The application must be accompanied by an affidavit:

(a)
identifying the person to be summoned as a relevant person; and
(b)
if the summons is to require the relevant person to produce books at the examination—identifying the books that the person is to produce.

[NOTE: Under subsection 81 (1B) of the Act, a relevant person may be required to produce books at an examination that are in the possession of the person and that relate to the person or to any of the person’s examinable affairs.]

Requirements of summons—Form 151

“29. (1) If a summons is issued, a Registrar must:

(a)
sign and stamp the summons; and
(b)
send it to the applicant for service on the relevant person.

“(2) The summons must be in accordance with Form 151.

“(3) If the summons requires the relevant person to produce books at the examination, the summons must identify the books that the person is to produce.

Service of summons

“30. 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 Judge; 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.

Failure by relevant person to attend examination

“31. 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: See section 264B of the Act for the power of the Court or a Registrar to issue a warrant for the arrest of the relevant person if the person does not attend an examination in accordance with a summons.]

“Subdivision C—Summons of examinable person for examination

Application of Subdivision C (Act, s 81 (1))

“32. This Subdivision applies to 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.

[NOTE: ‘Examinable person’ is defined in subsection 5 (1) of the Bankruptcy Act.]

Application for summons—Form 5 or Form 154

“33. (1) The application:

(a)
if made to the Court—must be in accordance with Form 5; or
(b)
if made to a Registrar—must be in accordance with Form 154.

“(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) If an application has been made in a proceeding, any subsequent application in the proceeding may be made by a notice of motion in the proceeding.

Affidavit to accompany application or notice of motion

“34.(1) The application, or notice of motion, must be accompanied by:

(a)
a draft of each summons applied for; and
(b)
a supporting affidavit complying with subrule (2).

“(2) 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 the person is to produce; 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: Under subsection 81 (1B) of the Act, an examinable person may be required to produce books at an examination that are in the possession of the person and that relate to the relevant person or to any of the relevant person’s examinable affairs.]

“(3) 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’.

“(4) If the supporting affidavit is filed in a sealed envelope in accordance with subrule (3), the Registrar must not make it available for public inspection.

Hearing of application or notice of motion

“35.The application, or notice of motion, may be heard in any of the following ways:

(a)
ex parte;
(b)
in closed court.

Requirements of summons—Form 151

“36. (1) If a summons is issued, a Registrar must:

(a)
sign and stamp the summons; and
(b)
send it to the applicant for service on each examinable person to be summoned for examination.

“(2) The summons must be in accordance with Form 151.

“(3) If the summons requires an examinable person to produce books at the examination, the summons must identify the books that the person is to produce.

Service of summons

“37. 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 Judge; 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.

Application for discharge of summons

“38.(1) An examinable person who is served with a summons, and who wishes to apply for an order to discharge the summons, may do so by filing:

(a)
a notice of motion in the proceeding in which the summons was issued; and
(b)
an affidavit setting out the grounds in support of the notice of motion.

“(2) As soon as possible after filing the notice of motion and supporting affidavit, the examinable person must serve them:

(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.

Conduct money and witnesses expenses

“39.(1)A person (except 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, in accordance with the Second Schedule, for the person’s attendance as a witness.

“(2) The expenses mentioned in paragraph (1) (a) must be paid to the person a reasonable time before the person is to attend the examination.

“(3) Expenses under this rule must be paid by the applicant for the summons.

“Division 7—Proof of debts

Appeal against estimate of value of debt or liability (Act, s 82 (5))

“40. (1) This rule applies to an appeal against an estimate of the value of a debt or liability provable in a bankruptcy.

“(2) The appeal must be made by filing an application in accordance with Form 5.

“Division 8—Annulment of bankruptcy

Application of Division 8 (Act, ss 153B and 252B)

“41. This Division applies to:

(a)
an application for annulment of a bankruptcy; or
(b)
an application for annulment of the administration of the estate of a deceased person.

Requirements of application

“42.(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 28 days before the hearing date fixed for the application.

Notice to creditors—Form 155

“43.(1) The applicant must notify each creditor, known to the applicant, of the bankrupt, or estate of the deceased person, of the application.

“(2) The notice must be in accordance with Form 155.

“(3) The applicant must serve the notice on each creditor at least 14 days before the hearing date fixed for the application.

Report by trustee

“44. (1) 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 be filed at least 5 days before the hearing date fixed for the application.

Order to be entered and served

“45. (1) If the Court orders an annulment, the applicant must enter the order within 1 day after the order is made.

“(2) Within 2 days after the order is entered, the applicant must give a copy of the order to:

(a)
the trustee; and
(b)
the Official Receiver for the District in which the order was made.

“Division 9—Trustees

Objection to appointment of trustee (Act, s 157 (6))

“46. (1) This rule applies to an application objecting to the appointment of a person as a trustee.

“(2) The application must be in accordance with Form 5.

“(3) The application must be accompanied by an affidavit stating the grounds in support of the application.

“(4) 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.

“(5) At least 14 days before the hearing date fixed for the application, the application and supporting affidavit must be served on each other creditor, known to the applicant, of the bankrupt, or the estate of the deceased person.

Resignation or release of trustee (Act, ss 180 and 183)

“47. (1) This rule applies to:

(a)
an application for acceptance of a trustee’s resignation from the office of trustee of an estate; or
(b)
an application for the release of a trustee from the trusteeship of an estate.

“(2) An application must be in accordance with Form 5.

“(3) The application must be accompanied by an affidavit stating the grounds in support of the application.

“(4) If the application is for the release of a trustee from the trusteeship of an estate, the application must also be accompanied by:

(a)
a statement giving details of the realisation of the bankrupt’s property and the distribution of the estate by the trustee; and
(b)
a copy of the most recent account required under subsection 175 (1) of the Bankruptcy Act.

“(5) The application and supporting documents must be served on:

(a)
the Official Receiver; and
(b)
the bankrupt; and
(c)
anyone else (including a creditor) that the Court may order.

“(6) If the Court makes the order sought, the trustee must:

(a)
enter the order within 1 day after the order is made; and
(b)
give a copy of the order to the Official Receiver for the District in which the order was made within 2 days after the order is entered.

Appeal from decision of taxing officer (Act, s 167 (8))

“48. An appeal from a decision of a taxing officer allowing or disallowing a bill of costs or charges, or an item in a bill of costs or charges, must be made by filing an application in accordance with Form 5.

“Division 10—Debt agreements

Application for order terminating debt agreement (Act, s 185Q)

“49. (1) This rule applies to an application for an order terminating a debt agreement.

“(2) The application must be in accordance with Form 5.

“(3) If the application is made by a creditor who also seeks a sequestration order under subsection 185Q (2) of the Act, this must be stated in the application.

“(4) The application must be accompanied by:

(a)
a copy of the debt agreement; and
(b)
an affidavit stating the facts relied on to satisfy the relevant prerequisite for making the order.

[NOTE: The prerequisites for making the order are stated in subsection 185Q (4) of the Act.]

“(5) 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.

Application for order declaring debt agreement void (Act, s 185T)

“50. (1) This rule applies to an application for an order declaring that all, or a specified part, of a debt agreement is void.

“(2) The application must be in accordance with Form 5.

“(3) If the application is made by a creditor who also seeks a sequestration order under subsection 185T (4) of the Act, this must be stated in the application.

“(4) The application must be accompanied by:

(a)
a copy of the debt agreement; and
(b)
an affidavit stating the facts relied on to establish the relevant ground for applying for the order.

[NOTE: The grounds for applying for the order are stated in subsection 185T (2) of the Act.]

“(5) 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.

Notice to creditors—Form 156

“51. (1) At least 5 days before the date fixed for the hearing of an application under this Division, 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 156.

Entry and service of order

“52. If the Court makes an order under this Division, the applicant must:

(a)
enter the order within 1 day after the order is made; and
(b)
give a copy of the order to the Official Receiver for the District in which the order was made within 2 days after the order is entered.

“Division 11—Arrangements with creditors

Application for order declaring deed or composition void (Act, s 222)

“53. (1) This rule applies to an application for an order declaring that a deed or composition, or any provision of the deed or composition, is void.

“(2) The application must be in accordance with Form 5.

“(3) If the application is made by a trustee or creditor who also seeks a sequestration order under subsection 222 (7) of the Act, this must be stated in the application.

“(4) The application must be accompanied by an affidavit stating:

(a)
the facts relied on to satisfy the relevant prerequisite for making the order; and
(b)
the facts relied on to establish the relevant ground for making the order.

[NOTES:

1. The prerequisites for making the order are stated in subsection 222 (6) of the Act.
2. The grounds for making the order are stated in subsection 222 (4) of the Act.]

Application for order terminating deed (Act, s 236)

“54. (1) This rule applies to an application for an order terminating a deed.

“(2) The application must be in accordance with Form 5.

“(3) If the application is made by a trustee or creditor who also seeks a sequestration order under subsection 236 (3) of the Act, this must be stated in the application.

“(4) The application must be accompanied by an affidavit stating the facts relied on to establish the relevant ground for making the order.

[NOTE: The grounds for making the order are stated in subsection 236 (1) of the Act.]

Application for order setting aside composition (Act, s 239)

“55. (1) This rule applies to an application for an order setting aside a composition.

“(2) The application must be in accordance with Form 5.

“(3) If the application is made by a creditor who also seeks a sequestration order under subsection 239 (1) of the Bankruptcy Act, this must be stated in the application.

“(4) The application must be accompanied by an affidavit stating the facts relied on to establish the relevant ground for making the order.

[NOTE: The grounds for making the order are stated in subsection 239 (2) of the Act.]

Service of application and supporting affidavit

“56. Unless the Court otherwise orders, at least 5 days before the date fixed for the hearing of an application under this Division, 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 order that service of the application on the debtor be dispensed with: see Act, subsections 222 (8), 236 (4) and 239 (3).]

Notice to creditors—Form 156

“57. (1) At least 5 days before the date fixed for the hearing of an application under this Division, 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 156.

Entry and service of order

“58. If the Court makes an order under this Division, the applicant must:

(a)
enter the order within 1 day after the order is made; and
(b)
give a copy of the order to the Official Receiver for the District in which the order was made within 2 days after the order is entered.

“Division 12—Administration of estates of

deceased persons

“Subdivision A—Creditors’ petitions

Requirements of petition (Act, s 244)

“59. (1) This rule applies to a creditor’s petition for the making of an order for the administration of a deceased person’s estate.

“(2) The petition must be in accordance with Form 157.

“(3) The petition must be accompanied by the affidavit verifying the petition required by subsection 244 (5) of the Act.

Additional affidavits to be filed before hearing

“60. (1) Before the hearing of a petition, the applicant creditor must file the affidavits required by:

(a)
subrules (2) to (4); and
(b)
if subrule (5) applies—that subrule.

“(2) The applicant must file an affidavit stating that the following documents have been served on the legal personal representative of the deceased person, or on someone else directed by the Court, and how they were served:

(a)
the petition;
(b)
the affidavit verifying the petition;
(c)
any consent to act as trustee lodged under section 156A of the Bankruptcy Act.

“(3) The applicant must file an affidavit of a person who knows the relevant facts:

(a)
sworn not earlier than the day before the hearing date for the petition; and
(b)
stating 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:

(a)
setting out the details of any references in the Index to the deceased person; and
(b)
stating 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)
that 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.

Entry and service of order

“61. If the Court makes an order under this Subdivision, the applicant must:

(a)
enter the order within 1 day after the order is made; and
(b)
give a copy of the order to the Official Receiver for the District in which the order was made within 2 days after the order is entered.

“Subdivision B—Administrators’ petitions

Administrator’s petition (Act, s 247)

“62. (1) This rule applies to a petition by a person administering the estate of a deceased person for an order for the administration of the estate.

“(2) The petition must be in accordance with Form 158.

[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.]

Entry and service of order

“63. If the Court makes an order under this Subdivision, the applicant must:

(a)
enter the order within 1 day after the order is made; and
(b)
give a copy of the order to the Official Receiver for the District in which the order was made within 2 days after the order is entered.

“Division 13—Warrants

Warrant for arrest of debtor or bankrupt (Act, s 78)

“64. (1) This rule applies to an application for the issue of a warrant for the arrest of a debtor or bankrupt.

“(2) The application must:

(a)
be in accordance with Form 5; and
(b)
state the grounds for the issue of the warrant.

“(3) The application must be accompanied by an affidavit stating the facts in support of the application.

“(4) A warrant for the arrest of a debtor or bankrupt must be in accordance with Form 159.

“(5) If a debtor or bankrupt is arrested under the warrant, the person who carried out the arrest must immediately inform a Registrar in the District Registry from which the warrant was issued of the arrest.

Warrant for apprehension of person failing to attend Court (Act, s 264B (1))

“65. (1) This rule applies to a warrant for the apprehension of a person who fails to comply with a summons to attend Court.

“(2) The warrant must be in accordance with Form 160.

“(3) A Judge or a Registrar may order that the warrant stay in the Registry:

(a)
for a stated time; and
(b)
on any conditions that the Judge or Registrar considers appropriate.

[NOTE: See Part 14 of the Bankruptcy Regulations 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, a Registrar, or a Magistrate, on the day the person is apprehended.]

“Division 14—Short form bills of costs

Application of Division 14

“66. This Division applies to the costs that may be charged by a solicitor for a creditor for work done in relation to a petition presented by the creditor against the estate of a debtor on the basis of an act of bankruptcy mentioned in paragraph 40 (1) (g) of the Bankruptcy Act.

[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.]

Short form bill of costs

“67. (1) If the Court makes a sequestration order against the debtor’s estate, the solicitor may charge for costs the amount, applying when the petition was presented, stated in item 43B in the Second Schedule.

“(2) If the petition is dismissed, and the creditor obtains an order for costs, the solicitor may charge for costs the amount, applying when the petition was presented, stated in item 43C in the Second Schedule.

“(3) The solicitor may also charge:

(a)
if adjournment costs were reserved or awarded on a day—the appropriate amount stated in item 36 or 37 in the Second Schedule; and
(b)
proper disbursements incurred for the petition.

“(4) If the solicitor charges an amount for costs under subrule (1) or (2), Order 62 does not apply to a bill of costs submitted for the costs, except for the issue of a certificate of taxation.

Claim for costs

“68. (1) A solicitor 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 the creditor a written notice setting out 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 solicitor serves the documents mentioned in subrule (2) 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).

Attendance at taxation hearing

“69. A creditor, the trustee, or a solicitor 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 solicitor to attend.”.

4. First Schedule

4.1 Form 5 (Application):

Omit the Form, substitute:

FORM 5

APPLICATION

(Order 4, rule 1)

(Specify briefly the nature of the subject of the application or cross‑claim and the legislative basis of the court’s jurisdiction to hear it and grant the relief sought. Note: This statement does not form part of the pleading.)

A.DETAILS OF CLAIM

On the grounds stated in the accompanying affidavit or statement of claim (or, if applicable, Claim of Unlawful Termination of Employment in accordance with Form 5A), the applicant claims:

1. (Specify in numbered paragraphs all final relief sought.)

B.CLAIM FOR INTERLOCUTORY RELIEF

(Complete this section if you wish to claim interlocutory relief)

AND the applicant claims by way of interlocutory relief:

1. (Specify in numbered paragraphs all final relief sought.)

Date: eg, 7 May 19

(signed, applicant or applicant’s solicitor)

C.NOTICE TO RESPONDENT

(Complete this section if there is a respondent)

TO the respondent of (insert 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 interlocutory relief may be heard.

Before any attendance at Court, you must file an appearance in the Registry.

Time and date for hearing: (to be entered by Registry unless fixed by Court)

Place: (address of Court)

D.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 (insert date) to (insert time and date).

Date: eg, 7 May 19

(signed, Registrar)

E.FILING AND SERVICE

This application is filed by (insert name) for (insert name) whose address for service is (insert address).

The applicant’s address is (if the applicant is an individual, specify place of residence or business; if the applicant is a corporation, specify principal place of business).

It is not intended to serve this application on any person.

It is intended to serve this application on each person listed below:

(insert name of each person on whom application is to be served)

5. First Schedule, new Forms 148 to 160

5.1 After Form 147, insert Forms 148 to 160 set out in Schedule 1.

6. Second Schedule (Costs allowable in respect of work done and services performed)

6.1 New items 43B and 43C:

After item 43A, insert:

“Bankruptcy Act—Short Form Bills

43B	Short form amount that may be claimed by an applicant on making of sequestration order	1189.30
43C	Short form amount that may be claimed by an applicant on the dismissal of a petition	1023.60”.

7. Third Schedule (Powers and functions of the Court that may be exercised by a Registrar if the Court or a Judge so directs)

7.1 Omit “Order 77, rule 2”, substitute “Order 77, rule 7”.

7.2 Third Schedule, Part 3:

Omit the Part, substitute:

“PART 3

Order 77, rule 7

Column 1 Item No.	Column 2 Provision of the Bankruptcy Act 1966	Column 3 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	subsection 41 (6A)	Extension of time for compliance with a bankruptcy notice
4	subsection 43 (1)	Power to make sequestration order
5	subsection 46 (2)	Power to make sequestration order against 2 or more debtors
6	subsection 47 (2)	Leave to withdraw creditor’s petition
7	section 49	Change of petitioner
8	subsection 52 (1)	Power to make sequestration order against debtor’s estate
9	subsection 52 (2)	Power to dismiss creditor’s petition
Column 1 Item No.	Column 2 Provision of the Bankruptcy Act 1966	Column 3 Description (for information only)
10	subsection 52 (5)	Power to extend period at expiration of which creditor’s petition lapses
11	section 81	Examinations
12	section 139ZU	Power to grant permission to a bankrupt to leave Australia
13	section 206	Power to adjourn petition if creditors have passed a resolution for a deed
14	subsection 244 (9)	Service of petition on person under Part XI
15	subsection 244 (10)	Power to dispense with service of petition under Part XI
16	subsection 244 (11)	Power to make order for administration of estate under Part XI
17	subsection 244 (12)	Power to dismiss petition under Part XI
18	subsection 244 (13)	Power to grant leave to present petition under Part XI
19	subsection 247 (1A)	Power to make order for administration on application of person administering estate
20	section 264B	Power to issue a warrant
21	subsection 309 (2)	Power to order substituted service

SCHEDULE 1 Subrule 5.1

FORM 148

HEAD OF DOCUMENT

(Order 77, rule 5)

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY

No. of 19

In the matter of (name of debtor or bankrupt estate)

A.B.

Applicant

C.D.

(if applicable) Respondent

FORM 149

NOTICE OF INTENTION TO OPPOSE APPLICATION

OR PETITION

(Order 77, subrule 11 (2))

(Name of opponent), (specify capacity of opponent, eg creditor, trustee), intends to oppose the *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 solicitor for opponent) for (name of opponent).

The opponent’s address for service is: (address for service).

Date: eg, 7 May 19

(signed, opponent or opponent’s solicitor)
* Omit if inapplicable

FORM 150

CREDITOR’S PETITION

Order 77, subrule 16 (1)

The applicant creditor (name and address of applicant)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).

2. EITHER

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:
EITHER
(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 one applicant creditor, the form may be appropriately amended.]

3. At the time when the act of bankruptcy was committed, the respondent debtor:
*
was personally present in Australia
*
was ordinarily resident in Australia
*
had a dwelling house or place of business in Australia
*
was carrying on business in Australia either personally or by an agent or manager
*
was a member of a firm or partnership carrying on business in Australian by means of partners or agent or manager.
4. The following act of bankruptcy was committed by the respondent debtor within 6 months before the presentation of this petition:

(Give full details of the act of bankruptcy mentioned in section 40 of the Bankruptcy Act 1966 on which you are relying, including details of any judgment on which a bankruptcy notice is founded.)

Date: eg, 7 May 19

(signed, petitioner or solicitor for petitioner)

To: (name of respondent debtor)

(address)

This petition has been set down for hearing by the Court at the time, date and place specified below. If there is no appearance by you or your legal representative at that time, the petition may be dealt with in your absence and a sequestration order made against you.

If you wish to appear at the hearing, you must file and serve a notice of appearance in accordance with Order 9 of the Federal Court Rules.

If you wish to appear at the hearing and oppose this petition, you must:

(a)
enter an appearance and file a notice of intention to oppose the petition, in accordance with Form 149, 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: eg, 7 May 19

(signed, Registrar)

This petition is filed by (name of solicitor for petitioner) for (name of petitioner).

The petitioner’s address for service is: (address for service).

* Omit if inapplicable

FORM 151

SUMMONS TO ATTEND EXAMINATION

(Bankruptcy Act 1966, section 50 or 81)

(Order 77, subrules 20 (5), 29 (2) and 36 (2))

TO: (name and address of person summoned)

1. You are required to attend at the time, date and place stated below 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 bring the following books with you and produce them at the examination:
(list books required)

Time and date for examination: (to be inserted by Registry)

Place: (address of Court)

Date: eg, 7 May 19

(signed, 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).

[NOTES:

1. Section 5 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.
EITHER (use appropriate note 2)
2. If you are the bankrupt and have been served with this summons and you do not attend before the Court of the Registrar for examination as required by this summons, section 264B of the Bankruptcy Act 1966 provides that a warrant for your apprehension (arrest) may be issued.
OR
2. If you are not the bankrupt and you have been served with this summons and a reasonable amount was tendered to you for expenses, and you do not attend before the Court or the Registrar for examination as required by this summons, section 264B of the Bankruptcy Act 1966 provides that a warrant for your apprehension (arrest) may be issued.
3. If you are not the bankrupt, you may apply to have the summons discharged by filing a notice of motion and affidavit as provided by Order 77, rule 38 of the Federal Court Rules.]
* Omit if inapplicable

FORM 152

SEQUESTRATION ORDER

(Order 77, subrule 21 (2))

JUDGE/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 entered: eg, 7 May 19

(signed, District Registrar)

FORM 153

REFERRAL OF DEBTOR’S PETITION TO THE COURT

(Bankruptcy Act 1966, subsection 55 (3B),

section 56C or subsection 57(3B))

(Order 77, rule 24 and subrule 25 (3))

The debtor (name of debtor)has presented a debtor’s petition to the Official Receiver.

Creditor’s petition No.(insert number) of (insert 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: eg, 7 May 19

(signed, Official Receiver)
Official Receiver

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: eg, 7 May 19

(signed, Registrar)

FORM 154

APPLICATION TO REGISTRAR FOR ISSUE OF SUMMONS

UNDER SECTION 81 OF THE BANKRUPTCY ACT 1966

(Order 77, subrules 28 (1) and 33 (1))

On the grounds set out in the accompanying affidavit, the applicant requests the 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:
(list and give details of name and address of each relevant person)
AND/OR

B. Examinable persons:

*to give evidence:
OR
*to give evidence and produce documents:
(list and give details of name and address of each examinable person)

Date: eg, 7 May 19

(signed, applicant or applicant’s solicitor)

* Omit if inapplicable

FORM 155

NOTICE OF ANNULMENT APPLICATION

(Order 77, subrule 43 (2))

TAKE NOTICE that on (date and time) at (place), (name of debtor or person administering estate of deceased debtor) will be applying for the annulment of the bankruptcy.

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.

This notice is given by (name of applicant and applicant’s solicitor) who may be contacted at (address, telephone and facsimile numbers).

FORM 156

NOTICE OF HEARING

(Order 77, subrules 51 (2) and 57 (2))

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.

The applicant (or applicant’s solicitor) can be contacted at (address, telephone and facsimile numbers).

FORM 157

CREDITOR’S PETITION UNDER SECTION 244 OF THE BANKRUPTCY ACT 1966 FOR THE ADMINISTRATION OF A DECEASED PERSON’S ESTATE

(Order 77, subrule 59 (2))

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 debtor) who died on (date of death).

1. The estate of the deceased 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. EITHER

The applicant creditor does not hold security over the property of the deceased debtor.
OR
The applicant creditor holds security over the property of the deceased debtor to the value of ($ amount) and consisting of (statement of particulars of security), and
EITHER
(a) is willing to surrender this security for the benefit of creditors generally if a sequestration order for administration of the estate in bankruptcy in made;
OR
(b)
the value of the property is ($ amount), which leaves an unsecured debt of ($ amount).

[NOTE: If there is more than one creditor, this form may be appropriately amended.]

3. At the time of the debtor’s death, the debtor:

*
was personally present in Australia
*
was ordinarily resident in Australia
*
had a dwelling house or place of business in Australia
*
was carrying on business in Australia either personally or by an agent or manager
*
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: eg, 7 May 19

(signed, petitioner or solicitor for petitioner)
TO: (legal personal representative of the deceased 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 and place stated below. If there is no appearance by you or your legal representative at that time, the petition may be dealt with in your absence and a sequestration order made against the estate of the deceased debtor.

If you wish to appear at the hearing, you must file and serve a notice of appearance in accordance with Order 9 of the Federal Court Rules.

If you wish to appear at the hearing and oppose this petition, you must:

(a)
enter an appearance and file a notice of intention to oppose the petition, in accordance with Form 149, 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: eg, 7 May 19

(signed, Registrar)

This petition is filed by *(name of petitioner)/*(solicitor for the petitioner) on behalf of (name of petitioner).

The petitioner’s address for service is: (address for service).

* Omit if inapplicable

FORM 158

PETITION UNDER SECTION 247 OF THE

BANKRUPTCY ACT 1966 BY PERSON ADMINISTERING ESTATE OF A DECEASED PERSON

(Order 77, subrule 62 (2))

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 one administrator, the form may be appropriately amended.]

3. At the time of the debtor’s death, the debtor:

*
was personally present in Australia
*
was ordinarily resident in Australia
*
had a dwelling house or place of business in Australia
*
was carrying on business in Australia either personally or by an agent or manager
*
was a member of a firm or partnership carrying on business in Australia by means of partners or agent or manager.

Date: eg, 7 May 19

(signed, petitioner)

Before:

(signature, name, address and occupation of witness)

This petition has been set down for hearing by the Court at the time, date and place specified below.

Time and date for hearing: (to be entered by Registry)

Place: (address of Court)

Date: eg, 7 May 19

(signed, Registrar)

This petition is filed by (name of solicitor for petitioner) for (name of petitioner).

The petitioner’s address for service: (address for service).

* Omit if inapplicable

FORM 159

WARRANT FOR THE ARREST OF A BANKRUPT

(Order 77, subrule 64 (4))

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).

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 name in Court’s order) to be kept by that person until the Court makes an order for their disposal.

Dated: eg, 7 May 19

(signed, Registrar)

* Omit if inapplicable

FORM 160

WARRANT FOR APPREHENSION OF PERSON UNDER SECTION 264B OF THE BANKRUPTCY ACT 1966

(Order 77, subrule 65 (2))

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 (insert 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 (insert time) at (insert 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 (insert 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.

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 (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: eg, 7 May 19

(signed, Registrar)

* Omit if inapplicable

‡Omit if the summons is to a relevant person under section 81 of the Bankruptcy Act 1966

NOTES

1. Notified in the Commonwealth of Australia Gazette on 30 June 1997.
2. Statutory Rules 1979 No. 140 as amended by 1980 No. 87; 1982 Nos. 217 and 408; 1983 No. 264; 1984 Nos. 9 and 258; 1985 Nos. 16, 97, 168 and 227; 1986 Nos. 61, 157 and 324; 1987 Nos. 73, 174 and 197; 1988 Nos. 14, 54, 144, 217 and 306; 1989 Nos. 50, 253 and 318; 1990 Nos. 72, 102, 276, 319, 414 and 453; 1991 Nos. 70, 249, 395 and 461; 1992 Nos. 43, 44, 86, 87, 186, 330, 421 and 453; 1993 No. 40, 45, 137. 225 and 290; 1994 Nos. 63, 130, 224, 279, 332 and 463; 1995 Nos. 31, 46, 239 and 449; 1996 Nos. 29 and 308; 1997 Nos. 82, 87 and 143.