Federal Circuit Court (Bankruptcy) Rules 2006 — Zoe

Commonwealth legislation

Federal Circuit Court (Bankruptcy) Rules 2006

RepealedCTH

This Act has been repealed and is no longer in force. It is retained for historical reference.

Jurisdiction

Commonwealth

Act Number

1 of 2006

Collection

legislative instrument

Plain English Summary

5/10 complexity

The Federal Circuit Court (Bankruptcy) Rules 2006 set out the practice and procedure for bankruptcy matters in the Federal Circuit Court of Australia. They apply whenever the Bankruptcy Act 1966 requires or permits a matter to be brought to the court. The rules do not change substantive bankruptcy law; they dictate the forms, documents, time limits, and steps that must be followed.

Key areas include: applying for substituted service, setting aside, or extending time for bankruptcy notices; filing creditors’ petitions for sequestration orders (with detailed affidavit and service requirements); referring debtors’ petitions from the Official Receiver for a court direction; issuing summonses for the examination of bankrupts, debtors, and related persons about financial affairs (including safeguards for confidential material); annulling a bankruptcy or reviewing a Registrar’s sequestration order; objecting to, resigning from, or releasing trustees; and terminating or setting aside debt agreements and personal insolvency agreements. There are also specific parts for administering deceased estates under bankruptcy law, issuing warrants for arrest or apprehension, and claiming costs (including a short-form bill system for certain creditors’ petition work).

The rules affect creditors, debtors, bankrupts, trustees (including the Official Trustee), the Official Receiver, legal practitioners, and anyone participating in a bankruptcy proceeding in the Federal Circuit Court. The practical point is that strict compliance with these procedural requirements is essential; missing a deadline or using the wrong form can delay or defeat an application. Registrars may exercise certain powers, with a right to apply for review within 21 days. The rules incorporate standard forms from Schedule 1 and, for costs, reference the Federal Court Rules 2011 unless the court fixes an amount.

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What it does

The Federal Circuit Court (Bankruptcy) Rules 2006 (the Rules) are the dedicated procedural code for matters in the Federal Circuit Court that engage the Bankruptcy Act 1966. They sit beneath the Federal Circuit Court of Australia Act 1999, under which they were made, and operate concurrently with the general Federal Circuit Court Rules 2001, displacing or supplementing those general rules wherever necessary.

In substance, the Rules do the following:

prescribe the forms in which originating and interim applications must be commenced;
direct the documents, affidavits and service steps required for bankruptcy notices, creditor’s petitions, debtor’s petitions, and the administration of deceased estates under Part XI of the Bankruptcy Act;
confer powers on Registrars and set the procedure for review of a Registrar’s decision;
regulate appearance, opposition and the grant of leave to be heard to non‑parties;
establish a self‑contained costs regime for creditor’s petitions founded on the most common act of bankruptcy (failure to comply with a bankruptcy notice);
specify post‑judgment obligations, particularly the notification of trustees and the Official Receiver after a sequestration or administration order.

The Rules do not alter the substantive law of bankruptcy; they are machinery provisions designed to lower the risk of jurisdictional error and to standardise the documentary pathway from commencement of a petition to entry of an order. For the busy practitioner, they represent the non‑negotiable checklist that stands between instructions and a validly obtained sequestration order.

Current sections

Direct links to the current provisions in Federal Circuit Court (Bankruptcy) Rules 2006.

Official source available

Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.

View on official register

Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.

Interpretation anchored in the Bankruptcy Act. The Rules borrow the meaning of every expression that also appears in the Bankruptcy Act 1966 (r 1.05). The note to that rule expressly lists the key defined terms: bankrupt, creditor, creditor’s petition, debt agreement, debtor’s petition, examinable affairs, examinable person, National Personal Insolvency Index, Official Receiver, Official Trustee, personal insolvency agreement, petition, proclaimed law, property, and the trustee. Where an expression is not in the Bankruptcy Act, it takes its meaning from the Dictionary in the Federal Circuit Court Rules 2001 (r 1.04(2)). The Rules themselves define only Act, Bankruptcy Act, bankruptcy notice and Bankruptcy Regulations (r 1.04(1)). This layering of definitions minimises argument about whether a term carries a different shade of meaning in the procedural context.

Forms and substantial compliance. Schedule 1 contains the prescribed forms. A document that substantially complies with a prescribed form is treated as sufficient (r 1.06(2)). If no specific form exists, a form from the Court’s other rules may be used, provided the document bears a title in accordance with Form 1 (r 1.06(3)). This is not a licence to depart from the substance; the verifying affidavit required by s 47(1) of the Bankruptcy Act, for example, may be incorporated into Form 6 (Part 2) or filed separately, but the statutory precondition must still be met.

Originating and interim applications. An application under the Bankruptcy Act that is not made in an existing proceeding must be commenced by filing an application in Form 2. If made in an existing proceeding, or after final relief has been granted, the vehicle is an interim application in Form 3, unless the Court directs otherwise (r 2.01(1)‑(2)). The application must identify the relevant section of the Bankruptcy Act or the Bankruptcy Regulations and the relief sought (r 2.01(3)). A non‑exhaustive note lists matters that require an originating application (Form 2), including:

substituted service of a bankruptcy notice;
a summons under s 50 or a warrant under s 78;
an appeal under s 82(5);
an annulment under s 153B or, for a deceased estate, under s 252B;
an objection to the appointment of a trustee under s 157(6);
an appeal from a taxing officer under s 167(8);
acceptance of a trustee’s resignation under s 180, or release under s 183;
termination of a debt agreement under s 185Q or a declaration that it is void under s 185T;
setting aside a personal insolvency agreement under s 222, or terminating it under s 222C (including as applied by s 76B).

Registrar’s powers and review. If the Court so directs, a Registrar may exercise any power of the Court under a provision of the Bankruptcy Act listed in Schedule 2 (r 2.02, made for the purposes of s 102(2)(i) of the Act). A party aggrieved by the Registrar’s exercise of power must apply for review within 21 days after the day the power was exercised (r 2.03(1)). An application for a stay of the Registrar’s order under s 104(4)(b) may be made orally to the Registrar at the time of the hearing (r 2.03(2)). The 21‑day deadline is expressed as being subject to a contrary direction from the Court, so a late application is not absolutely foreclosed, but there is no automatic extension.

Leave to be heard. A non‑party may obtain leave to be heard on terms (including costs), and the Court may revoke leave (r 2.04(1)‑(2)). If the non‑party’s participation causes additional costs, the Court may order payment of those costs and may stay the hearing until payment is made or security given (r 2.04(3)‑(4)). The application is made by interim application (Form 3) (r 2.04(6)).

Appearance and opposition. Any person intending to appear at the hearing of an application or petition, or to take part in an examination, must file a notice of appearance in Form 4 (r 2.05(1)). Rule 10.02 of the Federal Circuit Court Rules 2001, which allows a party to adjourn a first court date by consent, does not apply to the hearing date of a creditor’s petition (r 2.05(2)). This preserves the statutory momentum of a petition.

A person opposing an application or petition must, at least three days before the hearing (or with leave at the hearing), file and serve on the applicant: a notice of appearance (Form 4), a notice stating the grounds of opposition (Form 5), and a supporting affidavit (r 2.06). The three‑day minimum is strict; late opposition is at the Court’s discretion.

Bankruptcy notices (Part 3). An application for substituted service of a bankruptcy notice must be accompanied by a copy of the notice and an affidavit stating the grounds (r 3.01). An application to set aside a bankruptcy notice must be accompanied by a copy of the notice, an affidavit stating the grounds and the date of service, and a copy of any application or material to set aside the underlying judgment or order (r 3.02(1)). If the application relies on a counter‑claim, set‑off or cross demand under s 40(1)(g) of the Bankruptcy Act, the affidavit must state full details of the counter‑claim, the amount by which it exceeds the claim in the notice, and why it was not raised in the original proceeding (r 3.02(2)). The application and supporting documents must be served on the respondent creditor within three days after filing (r 3.02(3)). An application for an extension of time for compliance with a bankruptcy notice follows an analogous documentary discipline, may be made ex parte, and must be served within three days if an order is obtained (r 3.03). It need be heard in open court only if the extension sought goes beyond the first court date (r 3.03(4)).

Creditor’s petitions (Part 4). This Part applies to a petition seeking a sequestration order against the estate of a debtor (r 4.01). The petition must be in accordance with Form 6 (r 4.02(1)). The verifying affidavit required by s 47(1) of the Bankruptcy Act may be included in Part 2 of Form 6 or filed separately (r 4.02(2)). The petition must be accompanied by sufficient copies for service (r 4.02(3)(a)). If the petition relies on an act of bankruptcy constituted by execution returned unsatisfied (s 40(1)(d)), the verifying affidavit must state that the debtor’s property has been held by the sheriff for 21 days or that the writ has been returned unsatisfied, and a sealed or certified copy of the writ must be attached (r 4.03). If the petition relies on failure to comply with a bankruptcy notice (s 40(1)(g)), the applicant creditor must also file an affidavit stating that a search of court records shows no pending set‑aside or extension application, or that any such application has been finally decided, together with an affidavit of service of the bankruptcy notice (r 4.04).

Service of the petition must occur at least five days before the hearing. The debtor must be served with the petition itself, copies of the verifying affidavit(s), the affidavit required by r 4.04(1)(a) (if applicable), the affidavit of service of the bankruptcy notice (if applicable), and any consent to act as trustee under s 156A (r 4.05). The Court may otherwise order.

Before the hearing, the applicant must file:

an affidavit proving service in accordance with r 4.05 (r 4.06(2));
an affidavit of a person who has searched the National Personal Insolvency Index (NPII) not earlier than the day before the hearing, stating that there were no details of a debt agreement relating to the debt on the day the petition was presented or on the day of the search, and attaching the NPII extract (r 4.06(3));
an affidavit of debt, sworn as soon as practicable before the hearing, stating that the debt is still owing (r 4.06(4));
if the debt has been ordered to be paid into court, an additional search affidavit (r 4.06(5)‑(6)).

If it is impracticable to file the original of an affidavit required by r 4.06, a fax copy may be filed, but the applicant must retain the original and produce it as the Court directs (r 4.07).

After a sequestration order is made (which must be in accordance with Form 7), the applicant must notify the trustee in writing on the same day, give a copy of the order to any consenting trustee within two days, and, if the order is not entered immediately, request entry as soon as practicable (r 4.08). Where the Court dismisses a petition, grants leave to withdraw, or makes an order under s 52(5), the applicant must request entry as soon as practicable and give a copy of the order to the Official Receiver within two days (r 4.09). Within two days after the entry is stamped, a copy of the entered order must be given to any consenting trustee and to the Official Receiver for the district in which the order was made (r 4.10).

Debtor’s petitions (Part 5). When the Official Receiver refers a debtor’s petition to the Court for a direction under s 55(3)(a) of the Bankruptcy Act, the referral must be in Form 8 (r 5.01(1)). A Registrar fixes a hearing date (r 5.01(2)). At least three days before the hearing, the Official Receiver must serve a sealed copy of the referral and the hearing notice on each presenting debtor, any debtor named in a related creditor’s petition, every creditor listed in the petition, and, where relevant, the person administering a proclaimed law (r 5.01(3)).

Administration of estates of deceased persons (Part 11). A creditor’s petition for an administration order under Part XI of the Bankruptcy Act must be in Form 14 and be accompanied by the verifying affidavit required by s 244(5) of the Bankruptcy Act (r 11.01). Before the hearing, the creditor must file the same core suite of affidavits as for a living debtor (service, debt still owing, NPII search), adapted to the deceased estate context, and an additional affidavit detailing any State or Territory court proceeding for the administration of the deceased person’s estate (r 11.02). An administrator’s own petition under s 247 must be in Form 15, and the rules remind the practitioner of the requirement for a duplicate statement of the deceased person’s affairs (r 11.03 note). The applicant for an order must request entry if it is not entered at the time it is made (r 11.04).

Costs (Part 13). Costs in a bankruptcy proceeding are, by default, assessed in accordance with Part 40 of the Federal Court Rules 2011, unless the Court fixes the amount (r 13.01). Division 13.2 creates a special short‑form bill regime for a legal practitioner acting for a creditor on a petition based on the act of bankruptcy in s 40(1)(g) of the Bankruptcy Act (failure to comply with a bankruptcy notice). The regime does not apply if the Court has fixed the costs. Where it does apply:

if a sequestration order is made, the practitioner may charge the amount in item 14.1 of Schedule 3 to the Federal Court Rules 2011, as at the date the petition was presented (r 13.03(1));
if the petition is dismissed and the creditor obtains an order for costs, the amount is that in item 14.2 (r 13.03(2));
in either case, adjournment costs (item 1 of Schedule 3) and proper disbursements may be added (r 13.03(3)).

The claim procedure requires service of a bill (which need not be itemised) and copies of receipts, vouchers or journals in support of disbursements. The trustee (or debtor, on dismissal) has 14 days to give written notice disputing any amount. After 14 days the creditor may file the bill, an affidavit of service and any notice of dispute (r 13.04). Attendance at a taxation of the bill is only by direction of the taxing officer (r 13.05).

Who it affects

The Rules directly condition the practice of any legal practitioner or accountant who appears in the Federal Circuit Court on a bankruptcy matter. The principal actors affected include:

Solicitors and barristers for petitioning creditors. They must master the precise requirements of Parts 3, 4 and 13, because a defect in any of the mandated affidavits, forms or service steps can lead to dismissal, adjournment or adverse costs orders.
Debtors and their legal representatives. The opposition machinery (r 2.06) imposes a three‑day pre‑hearing deadline that, if missed, places the debtor at the mercy of the Court’s leave. The rules for setting aside a bankruptcy notice (r 3.02) and for extending time (r 3.03) create tight service deadlines that must be diarised.
Registered trustees and the Official Trustee. They receive notification obligations from petitioning creditors (r 4.08, 4.10) and are the recipients of short‑form costs bills when a sequestration order is made (r 13.04(1)). Their right to dispute the bill is subject to a 14‑day window.
The Official Receiver. The Rules impose service duties on the Official Receiver in the case of a debtor’s petition referral (r 5.01(3)) and are the designated recipient of entered orders dismissing a petition (r 4.09(2)(b)) or after a sequestration order (r 4.10(b)).
Legal personal representatives of deceased persons. They are respondents to a petition under Part 11 and must be served with the petition and supporting affidavits (r 11.02(2)).
Non‑parties seeking to be heard. A person who is not a party to a proceeding but whose interests may be affected (for instance, a secured creditor who is not the petitioning creditor) must apply by interim application for leave and may face costs orders or a stay of proceedings if their participation causes delay or expense (r 2.04).
Registrars of the Federal Circuit Court. Their jurisdiction to exercise powers under the Bankruptcy Act depends on a direction of the Court and the enumeration in Schedule 2 (r 2.02). Their decisions are subject to the 21‑day review mechanism.
Journalists and researchers analysing systemic compliance patterns will find that the Rules create a densely articulated pathway in which the failure to file an NPII search affidavit sworn the day before the hearing, or to serve a petition five clear days before the hearing, are among the most frequent procedural fracture points.

Key duties and rights

Duties on a petitioning creditor (s 40(1)(g) petition)

The creditor’s solicitor assumes a series of sequential obligations:

At the point of filing, prepare a petition in Form 6, either incorporating the verifying affidavit in Part 2 or filing it separately, attach the r 4.04(1)(a) affidavit (court search for any pending challenge to the bankruptcy notice) and the affidavit of service of the bankruptcy notice, and provide sufficient copies for service (rr 4.02‑4.04).
At least five days before the hearing, serve on the debtor all of those documents plus any trustee consent under s 156A (r 4.05). The five‑day period is a minimum; failure to serve in time can be overcome only by a court order.
Before the hearing, file the three pre‑hearing affidavits: proof of service (r 4.06(2)), the NPII search affidavit sworn no earlier than the day before the hearing (r 4.06(3)), and the affidavit of debt sworn as soon as practicable before the hearing confirming the debt remains owing (r 4.06(4)). The NPII affidavit must be precise: it must state that no debt agreement details appeared on the petition presentation date and on the search date, and the extract must be annexed.
Immediately after a sequestration order, notify the trustee in writing the same day (r 4.08(2)(a)), give a copy of the order to any consenting trustee within two days (r 4.08(2)(b)), and, if the order is not entered at the hearing, request entry as soon as practicable (r 4.08(3)).
Within two days of the entry being stamped, provide copies of the entered order to any consenting trustee and to the Official Receiver for the relevant district (r 4.10).

If the petition is dismissed, the creditor must request entry as soon as practicable and give a copy of the order to the Official Receiver within two days (r 4.09).

Duties on a debtor opposing a petition

A debtor intending to oppose a petition must, at least three days before the hearing, file and serve:

a notice of appearance (Form 4);
a notice of grounds of opposition (Form 5); and
a supporting affidavit (r 2.06).

If the three‑day window is missed, the debtor must seek leave at the hearing. The Rules do not guarantee leave; it is discretionary.

Rights and duties concerning bankruptcy notices

A debtor who wishes to challenge a bankruptcy notice must file an application (Form 2) with a copy of the notice, an affidavit stating the grounds and the date of service, and any material relevant to setting aside the underlying judgment or order (r 3.02(1)). If relying on a counter‑claim, set‑off or cross demand, the debtor must disclose in the affidavit the full details, the quantum by which the cross‑claim exceeds the notice amount, and the reason the cross‑claim was not raised in the original proceeding (r 3.02(2)). The debtor must serve the application and all supporting documents on the creditor within three days after filing (r 3.02(3)).

When seeking an extension of time to comply, similar affidavit material must be filed, the application may be made ex parte, and if an order is obtained, the order and documents must be served on the creditor within three days (r 3.03(1)‑(3)).

Duties of the Official Receiver on a debtor’s petition referral

Upon filing a referral in Form 8, the Official Receiver has a duty to serve a sealed copy of the referral and the hearing notice, at least three days before the hearing, on each presenting debtor, any debtor named in a related creditor’s petition, every creditor listed in the petition, and the person administering any relevant proclaimed law (r 5.01(3)).

Duties in deceased estate administrations

A creditor petitioning for an administration order under Part XI must file, before the hearing:

an affidavit of service on the legal personal representative (or other person directed by the Court) (r 11.02(2));
an affidavit of a person who knows the facts, sworn not earlier than the day before the hearing, stating that each debt relied on is still owing (r 11.02(3));
an NPII search affidavit in terms analogous to r 4.06(3) (r 11.02(4));
if there is a State or Territory administration proceeding, an affidavit setting out its details (r 11.02(5)).

An administrator petitioning under s 247 must use Form 15 and must be aware of the duplicate statement of affairs requirement in reg 11.01 of the Bankruptcy Regulations.

Costs claims

A legal practitioner claiming short‑form costs must serve on the trustee (or on the debtor if the petition was dismissed) a bill of costs and disbursements together with copies of receipts, vouchers or journals (r 13.04(1)‑(2)). The bill need not be itemised as to work done (r 13.04(3)). The recipient has 14 days to give written notice disputing any amount (r 13.04(4)). Only after the 14‑day period may the creditor file the bill with an affidavit of service and any notice of dispute (r 13.04(6)). A taxing officer controls attendance at taxation (r 13.05).

How it interacts with other laws

The Rules are best understood as the middle layer in a three‑tier statutory scheme.

Tier one: the Bankruptcy Act 1966. The substantive rights, duties and jurisdictional prerequisites are set by the Bankruptcy Act. The Rules take many operative concepts (creditor’s petition, bankruptcy notice, NPII, etc.) directly from that Act and, by r 1.05, adopt the Bankruptcy Act definitions. The Rules give procedural flesh to provisions such as ss 40‑43 (acts of bankruptcy and bankruptcy notices), s 47 (creditor’s petition), s 52 (hearing of petition), s 55 (debtor’s petition), s 156A (consent of trustee), and Part XI (administration of deceased estates). For instance, r 4.04 translates the act of bankruptcy in s 40(1)(g) into a precise suite of search and service affidavits.

Tier two: the Federal Circuit Court of Australia Act 1999. The enabling power for the Rules comes from this Act (r 1.02A). Section 102(2)(i) provides the basis for r 2.02, allowing a Registrar to exercise powers of the Court under a provision listed in Schedule 2. The review mechanism in r 2.03 is tied to ss 104(2) and 104(4) of the Act.

Tier three: the Federal Circuit Court Rules 2001 and the Federal Court Rules 2011. Subject to inconsistency, the Court’s general rules apply to bankruptcy proceedings (r 1.03(2)). Rule 2.05(2) expressly displaces r 10.02 of the 2001 Rules (adjournment of first court date) for the hearing date of a creditor’s petition, thereby preserving the momentum toward hearing. The costs regime in Part 13 defaults to Part 40 of the Federal Court Rules 2011 (r 13.01(1)), with the short‑form bill regime (Div 13.2) carving out an alternative for the most routine petition. Where the short‑form bill is used, Part 40 is excluded except for the issue of a certificate of taxation (r 13.03(4)).

The Bankruptcy Regulations 1996. The Rules themselves define Bankruptcy Regulations (r 1.04(1)), and rule 11.03 contains a note directing the reader to reg 11.01, which sets out the particulars required for a duplicate statement of affairs in a deceased estate administration petition.

The National Personal Insolvency Index. While not a legislative instrument, the NPII is embedded in the pre‑hearing machinery of rr 4.06(3) (living debtor) and 11.02(4) (deceased person). The affidavits must speak to the state of the Index both on the day the petition was presented and on the day of the search.

Court challenges and controversies

The source material does not identify any judicial challenge to the validity of the Rules themselves. However, the granularity of the procedural requirements has generated significant volume of contested hearings. While no cases are cited in the extracted text, the following pressure points are inherent in the drafting and are well known to the bankruptcy bar:

The NPII search deadline. The requirement that the NPII search affidavit be sworn “not earlier than the day before the hearing date” (r 4.06(3)) is absolute. A search conducted two days before the hearing, even if nothing has changed, is non‑compliant. Petitioning creditors who treat the NPII affidavit as a low‑priority administrative step do so at their peril.
Service of the petition. The five‑day minimum in r 4.05 is generous, but disputes about the adequacy of service (particularly where substituted service has been obtained, or where the debtor evades service) are common and turn on the affidavit of service required under r 4.06(2).
The r 4.04(1)(a) affidavit. An applicant must swear that court records have been searched and that no application relating to the bankruptcy notice is on foot, or that any such application has been finally decided. A mistake here, particularly failing to detect an extension application that has not yet been listed, can result in the petition being dismissed as premature.
Substantial compliance with forms. Rule 1.06(2) says substantial compliance is sufficient, but what constitutes “substantial” is a fact‑intensive question. A verifying affidavit that fails to attest to the matters required by s 47(1) of the Bankruptcy Act, even if contained within Part 2 of a Form 6, will not be saved by the substantial compliance provision.
Opposition by debtors. The three‑day pre‑hearing requirement in r 2.06 is strictly applied. Debtors who appear on the day of hearing without having filed a notice of appearance, grounds of opposition and a supporting affidavit often find the Court reluctant to adjourn, especially if the petitioning creditor has travelled and prepared for a final hearing.
Costs short‑form regime. Disputes occasionally arise as to whether the correct item in Schedule 3 of the Federal Court Rules 2011 has been claimed, or whether adjournment costs have been properly characterised. The lack of an itemised account can make it difficult for a trustee to assess the reasonableness of the claim without sighting the file.

Gotchas

NPII search affidavit timing. An NPII search sworn on the day before the hearing is compliant; one sworn two days before is not, unless the hearing date has been moved. If the hearing is adjourned, the search affidavit must be updated to reflect the new hearing date.
Service of bankruptcy notice set‑aside. The debtor must serve the set‑aside application and supporting documents on the respondent creditor within three days after filing. A common mistake is to file, obtain a hearing date, and then serve at leisure. The three‑day rule applies regardless of when the matter is listed. Failure to comply does not automatically invalidate the application, but the creditor may raise non‑compliance and force a further procedural skirmish.
Form 6 and the verifying affidavit. Including the s 47(1) verifying affidavit in Part 2 of Form 6 is permitted, but the deponent must still verify the paragraphs of the petition. If a separate affidavit is used, ensure it is identified as the verifying affidavit and cross‑referenced in the petition.
Affidavit of service of bankruptcy notice. This is required as an attachment to a petition based on s 40(1)(g) (r 4.04(1)(b)). An affidavit that merely deposes to service of the notice but does not prove the date the notice was served can create an evidentiary gap that opponents exploit.
Leave to withdraw a petition. Leave to withdraw is not automatic. When leave is granted or the petition is dismissed, r 4.09 imposes obligations to request entry “as soon as practicable” and to give a copy of the order to the Official Receiver within two days. Procrastination in attending to these steps can cause difficulty if the Official Receiver’s records are not updated and a debtor later seeks to prove the petition was dismissed.
Trustee notification on sequestration. Rule 4.08(2)(a) requires the applicant to notify the trustee “on the same day” the sequestration order is made. This is an immediate practical obligation that is easily overlooked in the aftermath of the hearing. The rule does not prescribe the mode of notification, but a file note recording a telephone call or a time‑stamped email is prudent.
Copy of entered order. Under r 4.10, the two‑day window to give a copy of the entered order to the consenting trustee and the Official Receiver runs from the date the entry is stamped, not the date the order is made. If the Registry delays entry, the two‑day clock does not start running until sealing occurs, but the applicant should still press for entry promptly under r 4.08(3).
Costs on dismissal of petition. If a petition is dismissed and the creditor obtains an order for costs, the short‑form bill amount is governed by item 14.2 of Schedule 3 to the Federal Court Rules 2011. However, item 14.2 is a fixed amount that may not cover the full cost of adjournments; the practitioner must separately claim adjournment costs under item 1, and the 14‑day dispute window applies to the whole bill.
Opposition to a creditor’s petition. Even if the debtor intends to argue that the debt is genuinely in dispute or that the Court should exercise its discretion under s 52(2) of the Bankruptcy Act, the three‑day pre‑hearing documentary requirement in r 2.06 applies. A debtor who only files a notice of appearance but not the grounds and supporting affidavit will likely be given a brief adjournment at best, with a costs penalty.
Deceased estates. The additional requirement in r 11.02(5) (affidavit about any State or Territory administration proceeding) is unique to this Part. A solicitor who treats a deceased estate petition as simply an adaptation of a living debtor’s petition risks being caught without the necessary evidence of concurrent State proceedings.

How to comply

Commencing a creditor’s petition (s 40(1)(g))

Pre‑filing checks. Obtain the bankruptcy notice from the Official Receiver and confirm the act of bankruptcy has occurred. Search the court records for any application to set aside or extend time for compliance with the notice. If none exists, prepare an affidavit to that effect (r 4.04(1)(a)). If there was an application that has been dismissed or otherwise finally decided, obtain a sealed copy of the final order and annex it (r 4.04(2)).
Prepare the petition. Use Form 6. Either include the verifying affidavit in Part 2 of the form or prepare a separate affidavit that satisfies s 47(1) of the Bankruptcy Act.
Assemble attachments. Attach:
- the r 4.04(1)(a) affidavit;
- the affidavit of service of the bankruptcy notice (r 4.04(1)(b));
- if a trustee has consented under s 156A, a copy of the consent.
File and serve. File the petition with sufficient copies for service. Serve the debtor personally at least five days before the hearing date with the petition, copies of all verifying affidavits, the r 4.04(1)(a) affidavit, the affidavit of service of the bankruptcy notice, and the trustee consent (r 4.05). If personal service is impractical, apply for substituted service by filing an application (Form 2) with an affidavit (r 3.01) well before the hearing.
Pre‑hearing affidavits. Before the hearing:
- Swear and file an affidavit proving compliance with r 4.05 (r 4.06(2)).
- Swear and file the NPII search affidavit not earlier than the day before the hearing, attaching the NPII extract and stating there were no debt agreement details on the petition presentation date or on the search date (r 4.06(3)).
- Swear and file the affidavit of debt as soon as practicable before the hearing, confirming the debt remains owing (r 4.06(4)).
At the hearing. If the Court makes a sequestration order, ensure the order is drawn up in accordance with Form 7.
Post‑order steps. On the same day, notify the trustee in writing (r 4.08(