Div Division 13.1Orders for costs

## Division 13.1 Orders for costs (2) The other rules of the Court apply, so far as they are not inconsistent with these Rules, to a proceeding to which the Bankruptcy Act applies. (2) Unless the contrary intention appears, an expression used in these Rules and in the Dictionary to the Federal Circuit Court Rules 2001 has the same meaning in these Rules as it has in the Dictionary. Unless the contrary intention appears, an expression used in these Rules and in the Bankruptcy Act has the same meaning in these Rules as it has in the Bankruptcy Act. (1) In these Rules, a reference to a form followed by a number is a reference to the form so numbered in Schedule 1 to these Rules. (2) It is sufficient compliance with these Rules in relation to a document that is required to be in accordance with a form in Schedule 1 if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires. (3) If these Rules do not prescribe a form for a particular purpose, a form prescribed in other rules of the Court for that purpose may be used, but the document must have a title in accordance with Form 1. (1) Unless these Rules otherwise provide, a person must make an application required or permitted by the Bankruptcy Act to be made to the Court: (a) if the application is not made in a proceeding already commenced in the Court—by filing an application in accordance with Form 2; and (2) If final relief has been granted in relation to a proceeding, a person may make an application to the Court in relation to the proceeding by filing an interim application in accordance with Form 3 unless the Court otherwise directs. (a) each section of the Bankruptcy Act, or each regulation of the Bankruptcy Regulations, under which the proceeding is brought; and (a) if appropriate, each section of the Bankruptcy Act, or each regulation of the Bankruptcy Regulations, or each rule of Court under which the application is made; and > Note: Each application and appeal mentioned below must be commenced by filing an application in accordance with Form 2. The list is not exhaustive. (b) an application, under section 50 of the Bankruptcy Act, for the issue of a summons to a debtor, or an examinable person in relation to the debtor, about the debtor and the debtor’s examinable affairs; (c) an application, under section 78 of the Bankruptcy Act, for the issue of a warrant for the arrest of a debtor or bankrupt; (d) an appeal, under subsection 82(5) of the Bankruptcy Act, against an estimate by the trustee of the value of a debt or liability provable in a bankruptcy; (f) an application, under subsection 157(6) of the Bankruptcy Act, objecting to the appointment of a person as a trustee; (g) an appeal from a decision of a taxing officer, appointed under subsection 167(8) of the Bankruptcy Act, allowing or disallowing a bill of costs or charges, or an item in such a bill; (h) an application, under section 180 of the Bankruptcy Act, for acceptance of a trustee’s resignation from the office of trustee of an estate; (k) an application, under section 185T of the Bankruptcy Act, for an order declaring that all, or a specified part, of a debt agreement is void; (m) an application, under section 222 of the Bankruptcy Act (as applied by section 76B of that Act), for an order setting aside a composition or scheme of arrangement; (o) an application, under section 222C of the Bankruptcy Act (as applied by section 76B of that Act), for an order terminating a composition or scheme of arrangement; (p) an application, under section 252B of the Bankruptcy Act, for the annulment of the administration of the estate of a deceased person. For the purposes of paragraph 102(2)(i) of the Act, if the Court so directs, a Registrar may exercise a power of the Court under a provision of the Bankruptcy Act mentioned in Schedule 2. (1) Subject to any direction by the Court or a Judge to the contrary, an application under subsection 104(2) of the Act for review of the exercise of a power of the Court by a Registrar under subsection 102(2), or under a delegation under subsection 103(1), of the Act must be made by application for review within 21 days after the day on which the power was exercised. (2) An application under paragraph 104(4)(b) of the Act may be made orally to the Registrar at the time that the Registrar is hearing the application for the exercise of a power mentioned in subsection 102(2), or in a delegation under subsection 103(1), of the Act. (4) The Court may also order that the person is not to be further heard in the proceeding until the costs are paid or secured to the Court’s satisfaction. (5) The Court may grant leave or make an order under this rule on the Court’s own initiative or on the application of a party or another person having an interest in the proceeding. (1) A person who intends to appear at the hearing of an application or petition, or take part in an examination, must file a notice of appearance in accordance with Form 4. (2) Rule 10.02 of the Federal Circuit Court Rules 2001 (adjournment of first court date) does not apply to the hearing date fixed for a creditor’s petition. (2) A person who intends to oppose an application or petition must, at least 3 days before the date fixed for the hearing of the application or petition or, with the leave of the Court, at the hearing: (c) a copy of any application to set aside the judgment or order in relation to which the bankruptcy notice was issued and any material in support of that application. (2) If the application is based on the ground that the debtor has a counter‑claim, set‑off or cross demand mentioned in paragraph 40(1)(g) of the Bankruptcy Act, the affidavit must also state: (b) the amount of the counter‑claim, set‑off or cross demand and the amount by which it exceeds the amount claimed in the bankruptcy notice; and (c) why the counter‑claim, set‑off or cross demand was not raised in the proceeding that resulted in the judgment or order in relation to which the bankruptcy notice was issued. (3) The application and supporting documents must be served on the respondent creditor within 3 days after the application is filed. (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 an order extending the time for compliance with a bankruptcy notice is made, the following documents must be served on the respondent creditor within 3 days after the order is made: (4) The application need be heard in open court only if it is for an extension of time to a date after the first court date. (2) The affidavit verifying the petition required by subsection 47(1) of the Bankruptcy Act may be in accordance with the affidavit set out in Part 2 of Form 6. (b) if the affidavit verifying the petition is not included in the petition in accordance with Part 2 of Form 6—an affidavit of a person who knows the relevant facts verifying the petition; and (4) If the petition is accompanied by an affidavit of a person who knows the relevant facts verifying the petition in accordance with paragraph (3)(b), a copy of the petition must be attached to the affidavit. (1) If a creditor’s petition is founded on an act of bankruptcy mentioned in paragraph 40(1)(d) of the Bankruptcy Act, the affidavit verifying the petition must state: (a) that, in consequence of the issue of execution against the debtor, property of the debtor has been sold by the sheriff or held by the sheriff for 21 days; or (2) If paragraph (1)(b) applies, the affidavit must have attached to it a sealed or certified copy of the writ or warrant of execution returned unsatisfied. (1) If a creditor’s petition is founded on an act of bankruptcy mentioned in paragraph 40(1)(g) of the Bankruptcy Act, the petition must also be accompanied by: (i) that the records of the Court and the records of the Federal Court have been searched and no application in relation to the bankruptcy notice has been made; or (ii) that an application was made in the Court or in the Federal Court, as applicable, for an order setting aside the relevant bankruptcy notice and the application has been finally decided; or (iii) that an application was made in the Court or in the Federal Court, as applicable, for an order extending the time for compliance with the bankruptcy notice and the application has been finally decided; and (2) If an application mentioned in subparagraph (1)(a)(ii) or (iii) was made, a copy of the order finally deciding the application must be attached to the affidavit required by paragraph (1)(a). Unless the Court otherwise orders, at least 5 days before the date fixed for the hearing of a creditor’s petition, the applicant creditor must serve on the respondent debtor: (b) a copy of the affidavit, or affidavits, verifying the petition required by subsection 47(1) of the Bankruptcy Act; and (a) states that the documents required to be served under rule 4.05 have been served and when and how they were served; and (3) The applicant creditor must file an affidavit of a person who has searched, or caused a search to be made, in the National Personal Insolvency Index no earlier than the day before the hearing date for the petition that: (b) states that there were no details of a debt agreement, about the debt on which the applicant creditor relies, in the Index: (5) The applicant creditor must file a search affidavit if the debt stated in the petition is an amount payable to the applicant creditor under a judgment of a court that ordered the amount to be paid into the court. > search affidavit, in relation to a petition stating a debt ordered to be paid into a court, means an affidavit of a person who has searched in the proper office of the court, not earlier than the day before the hearing date for the petition, stating whether the amount of the debt, or part of that amount, has been paid as ordered. (b) within 2 days after the order is made, give a copy of the sequestration order to any person who has consented to act as a trustee. (3) If the order is not entered at the time the order is made, the applicant creditor must, as soon as practicable, request entry of the order in accordance with rule 16.08 of the Federal Circuit Court Rules 2001. > Note: Subsection 52(1A) of the Bankruptcy Act provides that the creditor who obtained the sequestration order must give a copy of the order to the Official Receiver before the end of the period of 2 days beginning on the day the order was made. (a) if the order is not entered at the time the order is made—request entry of the order in accordance with rule 16.08 of the Federal Circuit Court Rules 2001 as soon as practicable; and (a) any person who has consented to act as the trustee of the debtor’s estate under section 156A of the Bankruptcy Act; and (1) A referral to the Court by the Official Receiver of a debtor’s petition, for a direction to accept or reject the petition, must be in accordance with Form 8. > Note: For the circumstances in which the Official Receiver must refer a debtor’s petition to the Court for a direction to accept or reject the petition, see subsection 55(3B), section 56C and subsection 57(3B) of the Bankruptcy Act. (3) At least 3 days before the date fixed for the hearing, the Official Receiver must serve a sealed copy of the referral, and notice of the time, date and place fixed for the hearing, on: (1) An application to the Court for a debtor, or an examinable person in relation to the debtor, to be summoned for examination must be accompanied by an affidavit complying with this rule. (b) if that person is an examinable person in relation to a debtor, the debtor in relation to whom the examination is to be conducted. (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 (3) If the summons requires the debtor, or examinable person in relation to the debtor, to produce books at the examination, the summons must identify the books that are to be produced. (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. (1) A debtor or an examinable person who is served with a summons and wishes to apply for an order to discharge the summons may do so by filing: (2) As soon as possible after filing the interim application and supporting affidavit, the debtor or examinable person must serve a copy of each document: (1) An application to the Court or a Registrar for a relevant person to be summoned for examination in relation to the person’s bankruptcy must be in accordance with Form 10. (ii) if the summons is to require the relevant person to produce books at the examination, the books that are to be produced. > Note: A relevant person may be required to produce books at an examination that are in the possession of the person and relate to the person or to any of the person’s examinable affairs—see subsection 81(1B) of the Bankruptcy Act. (3) If the summons requires the relevant person to produce books at the examination, the summons must identify the books that are to be produced. (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. > Note: For the power of the Court or a Registrar to issue a warrant for the arrest of a relevant person who does not attend an examination in accordance with a summons, see section 264B of the Bankruptcy Act. (1) A relevant person who is served with a summons and wishes to apply for an order to discharge the summons may do so by filing: (2) As soon as possible after filing the interim application and supporting affidavit, the relevant person must serve a copy of each document: (1) An application to the Court or a Registrar for an examinable person to be summoned for examination in relation to the bankruptcy of a relevant person must be in accordance with Form 10. (2) A single application may be made for the summons of 2 or more examinable persons in relation to a relevant person’s bankruptcy. > Note: An examinable person may be required to produce books at an examination that are in the possession of the person and relate to the relevant person or to any of the relevant person’s examinable affairs—see subsection 81(1B) of the Bankruptcy Act. (5) If the supporting affidavit is lodged with a Registry for filing (other than by being sent to the Registry by electronic communication), it may be filed in a sealed envelope marked “Affidavit supporting application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966”. (b) if the affidavit is so marked—the accompanying explanation must state that the affidavit is a “confidential affidavit supporting an application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966”. (3) If the summons requires an examinable person to produce books at the examination, the summons must identify the books that are to be produced. (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. (1) An examinable person who is served with a summons and wishes to apply for an order to discharge the summons may do so by filing: (2) As soon as possible after filing the interim application and supporting affidavit, the examinable person must serve a copy of each document: (1) A person (other than a relevant person) who, in accordance with a summons, attends an examination to give evidence or produce documents is entitled to be paid: (a) enough conduct money to cover the reasonable expenses of travelling from and to the place where the person lives, and any reasonable accommodation expenses; and (3) The expenses mentioned in paragraph (1)(a) must be paid a reasonable time before the person is to attend the examination. > conduct money means a sum of money or its equivalent, such as pre‑paid travel, sufficient to meet a person’s reasonable expenses of attending an examination and returning after so attending. (b) an application under section 252B of the Bankruptcy Act for the annulment of the administration of the estate of a deceased person. (1) The applicant must give notice of the application to each person known to the applicant to be a creditor of the bankrupt or a creditor of the estate of the deceased person. (3) The applicant must serve the notice on each creditor at least 7 days before the hearing date fixed for the application. (1) If directed by the Court, the trustee must prepare a report for the periods before and after the bankruptcy or the administration of the estate of the deceased person. (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. (1) This rule applies in relation to an application for review of a decision by a Registrar to make a sequestration order against the estate of a debtor (the bankrupt). (3) The applicant must give notice of the application to each person known to the applicant to be a creditor of the bankrupt. (5) The applicant must serve the notice on each creditor at least 7 days before the hearing date fixed for the application. (6) If directed by the Court, the trustee must prepare a report in relation to the bankrupt in accordance with rule 7.04. (1) An application objecting to the appointment of a person as a trustee must be accompanied by an affidavit stating the grounds in support of the application. (2) At least 28 days before the hearing date fixed for the application, the application and supporting affidavit must be served on the trustee and any petitioning creditor. (3) At least 14 days before the hearing date fixed for the application, the application and supporting affidavit must be served on each other person known to the applicant to be a creditor of the bankrupt or a creditor of the estate of the deceased person. > Note: Subsection 157(7A) of the Bankruptcy Act provides that if the Court cancels the appointment of a trustee and appoints another trustee, the creditor who filed the objection must give the Official Trustee written notice of the cancellation and appointment as soon as practicable. (1) An application for acceptance of a trustee’s resignation from the office of trustee of an estate, or release of a trustee from the trusteeship of an estate, must be accompanied by: (i) a statement giving details of the realisation of the bankrupt’s property and the distribution of the estate by the trustee; and (b) an application under section 185T of the Bankruptcy Act for an order declaring that all, or a specified part, of a debt agreement is void. (1) If the application is made by a creditor who also seeks a sequestration order, that must be stated in the application. (b) if the application is for an order terminating a debt agreement—an affidavit stating the facts relied on to satisfy the relevant prerequisite for making the order; and (c) if the application is for an order declaring that all, or a specified part, of a debt agreement is void—an affidavit stating the facts relied on to establish the relevant ground for applying for the order. Note 1: For paragraph (b), the prerequisites for making an order of the kind mentioned in paragraph (b) are set out in subsection 185Q(4) of the Bankruptcy Act. Note 2: For paragraph (c), the grounds for applying for an order of the kind mentioned in paragraph (c) are stated in subsection 185T(2) of the Bankruptcy Act. At least 5 days before the date fixed for the hearing of the application, the application and each supporting document must be served on: (1) At least 5 days before the date fixed for the hearing of the application, the applicant must serve a written notice of the time, date and place fixed for the hearing on each creditor known to the applicant. (c) an application under section 222 of the Bankruptcy Act (as applied by section 76B of that Act) for an order setting aside a composition or scheme of arrangement; (d) an application under section 222C of the Bankruptcy Act (as applied by section 76B of that Act) for an order terminating a composition or scheme of arrangement. (1) If the application is made by a trustee or creditor who also seeks a sequestration order, that must be stated in the application. (b) if the application is for an order under subsection 222(2) or (5)—the facts relied on to satisfy the relevant prerequisite for making the order. Note 1: For paragraph (a), the grounds for making an order to which this Part applies are stated in subsections 222(1), (2) and (5) and section 222C of the Bankruptcy Act. Note 2: For paragraph (b), the prerequisites for making an order of the kind mentioned in paragraph (2)(b) are stated in subsections 222(4) and (7) of the Bankruptcy Act. Unless the Court otherwise orders, at least 5 days before the date fixed for the hearing of the application, the application and supporting affidavit must be served on: > Note: The Court may dispense with service on the debtor of notice of an application: see subsection 222(12) of the Bankruptcy Act. (1) At least 5 days before the date fixed for the hearing of the application, the applicant must serve a written notice of the time, date and place fixed for the hearing on each creditor named in the debtor’s statement of affairs. If: the applicant must, as soon as practicable, request entry of the order in accordance with rule 16.08 of the Federal Circuit Court Rules 2001. (a) that the petition, the affidavit verifying the petition, and any consent to act as trustee filed under section 156A of the Bankruptcy Act, have been served on the legal personal representative of the deceased person or on someone else directed by the Court; and (4) The applicant must file an affidavit of a person who has searched in the National Personal Insolvency Index no earlier than the day before the hearing date for the petition that: (b) states that there were no details of a debt agreement, in relation to the debt on which the applicant relies, in the Index on the day on which the petition was presented; and (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. A petition by a person administering the estate of a deceased person for an order for the administration of the estate must be in accordance with Form 15. > Note: Subsection 247(1) of the Bankruptcy Act provides that the petition must be accompanied by a statement, in duplicate, of the deceased person’s affairs and of the administrator’s administration of the deceased person’s estate. Regulation 11.01 of the Bankruptcy Regulations sets out the particulars that must be included in the statement. If: the applicant must, as soon as practicable, request entry of the order in accordance with rule 16.08 of the Federal Circuit Court Rules 2001. > Note: Subsection 247(3) of the Bankruptcy Act provides that the person administering the estate of the deceased person must, before the end of the period of 2 days beginning on the day the order was made, give a copy of the order to the Official Receiver. (1) An application for the issue of a warrant for the arrest of a debtor or bankrupt must state the grounds for the issue of the warrant. (4) If a debtor or bankrupt is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to a Registrar in the Registry from which the warrant was issued. > Note: See also subsection 130(2) of the Bankruptcy Act which provides for the issue of a warrant for the seizure of property connected with a debtor or bankrupt. A suggested form for such a warrant is shown in Schedule 3 (Notes to these Rules). (3) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to a Registrar in the Registry from which the warrant was issued. > Note: For the procedure to be followed if a person is apprehended under a warrant and it is not practicable to bring the person before the Court or a Registrar on the day the person is apprehended, see Part 14 of the Bankruptcy Regulations. (1) Subject to Division 13.2, a person who is entitled to costs in a proceeding to which the Bankruptcy Act applies is entitled to costs in accordance with Part 40 of the Federal Court Rules 2011 unless the Court otherwise orders. (3) If the Court fixes the amount of the costs, Part 40 of the Federal Court Rules 2011 does not apply to a bill of costs submitted for the costs, except for the issue of a certificate of taxation. (1) This Division makes provision in relation to the costs that may be charged by a legal practitioner for a creditor for work done in relation to a petition against the estate of a debtor on the basis of an act of bankruptcy mentioned in paragraph 40(1)(g) of the Bankruptcy Act. (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. (1) If the Court makes a sequestration order against the debtor’s estate, the legal practitioner may charge for costs the amount, applying on the date when the petition was presented, stated in item 14.1 of Schedule 3 to the Federal Court Rules 2011. (2) If the petition is dismissed, and the creditor obtains an order for costs, the legal practitioner may charge for costs the amount, applying on the date when the petition was presented, stated in item 14.2 of Schedule 3 to the Federal Court Rules 2011. (a) if adjournment costs were reserved or awarded on a day—the appropriate amount stated in item 1 of Schedule 3 to the Federal Court Rules 2011; and (4) If the legal practitioner charges an amount for costs under subrule (1) or (2), Part 40 of the Federal Court Rules 2011 does not apply to a bill of costs submitted for the costs, except for the issue of a certificate of taxation. (4) If the trustee or debtor disputes any of the costs or disbursements, the trustee or debtor must give to the creditor a written notice stating the costs or disbursements disputed. (6) At least 14 days after the legal practitioner serves the documents on the trustee or debtor, the creditor may file in the Court: A creditor, the trustee, or a legal practitioner representing the creditor or the trustee, may attend a taxation of the bill of costs and disbursements only if a taxing officer directs the creditor, trustee or legal practitioner to attend.