Part 6Examinations

## Part 1—Preliminary #### 1.01 Name of Rules These Rules are the Federal Court (Bankruptcy) Rules 2005. #### 1.02 Commencement These Rules commence on 6 February 2006. #### 1.03 Application of these Rules and other rules of the Court (1) Unless the Court otherwise orders: (a) these Rules apply to a proceeding to which the Bankruptcy Act applies; and (b) Part 14 applies to a proceeding in the Court under the Cross‑Border Insolvency Act. > Note 1: The Federal Circuit Court does not have jurisdiction under the Cross‑Border Insolvency Act. > Note 2: For the definition of Federal Circuit Court, see section 4 of the Act. (2) The other rules of the Court apply, to the extent that they are relevant and not inconsistent with these Rules: (a) to a proceeding in the Court to which the Bankruptcy Act applies; and (b) to a proceeding in the Court under the Cross‑Border Insolvency Act that is commenced after 29 March 2009. #### 1.04 Interpretation (1) In these Rules, unless the contrary intention appears: > Act means the Federal Court of Australia Act 1976. > Bankruptcy Act means the Bankruptcy Act 1966. > bankruptcy notice means a bankruptcy notice issued by the Official Receiver under section 41 of the Bankruptcy Act. > Bankruptcy Regulations means the Bankruptcy Regulations 1996. > Cross‑Border Insolvency Act means the Cross‑Border Insolvency Act 2008 including, unless the contrary intention appears, the Model Law. > Model Law means the Model Law on Cross‑Border Insolvency of the United Nations Commission on International Trade Law, the English text of which is set out in Schedule 1 to the Cross‑Border Insolvency Act, with the modifications set out in Part 2 of that Act. (2) Unless the contrary intention appears, an expression used in these Rules and in Schedule 1 to the Federal Court Rules 2011 has the same meaning in these Rules as it has in that Schedule. (3) Subrule (2) has effect subject to rule 1.05. #### 1.05 Expressions used in the Bankruptcy Act Unless the contrary intention appears, an expression used in these Rules and in the Bankruptcy Act has the same meaning in these Rules as it has in the Bankruptcy Act. > Note: The following expressions are defined in subsection 5(1) of the Bankruptcy Act:  bankrupt  books  creditor  creditor’s petition  debt agreement  debtor’s petition  examinable affairs  examinable person  National Personal Insolvency Index  Official Receiver  Official Trustee  personal insolvency agreement  petition  proclaimed law  property  the trustee. #### 1.06 Forms (1) In these Rules, a reference to a form followed by a number is a reference to the form so numbered in Schedule 1 to these Rules. (2) It is sufficient compliance with these Rules in relation to a document that is required to be in accordance with a form in Schedule 1 if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires. (3) If these Rules do not prescribe a form for a particular purpose, a form prescribed in other rules of the Court for that purpose may be used, but the document must have a title in accordance with Form 1. ## Part 2—General #### 2.01 Originating application and interim application (1) Unless these Rules otherwise provide, a person must make an application required or permitted by the Bankruptcy Act to be made to the Court: (a) if the application is not made in a proceeding already commenced in the Court—by filing an application in accordance with Form 2; and (b) in any other case—by filing an interim application in accordance with Form 3. (2) If final relief has been granted in relation to a proceeding, a person may make an application to the Court in relation to the proceeding by filing an interim application in accordance with Form 3 unless the Court otherwise directs. (3) An application must state: (a) each section of the Bankruptcy Act, each regulation of the Bankruptcy Regulations or each section of the Cross‑Border Insolvency Act, under which the proceeding is brought; and (b) the relief sought. (4) An interim application must state: (a) if appropriate, each section of the Bankruptcy Act, each regulation of the Bankruptcy Regulations or each section of the Cross‑Border Insolvency Act, or each rule of Court under which the application is made; and (b) the relief sought. > Note: Each application and appeal mentioned below must be commenced by filing an application in accordance with Form 2. The list is not exhaustive. (a) an application for an order for substituted service of a bankruptcy notice; (b) an application, under section 50 of the Bankruptcy Act, for the issue of a summons to a debtor, or an examinable person in relation to the debtor, about the debtor and the debtor’s examinable affairs; (c) an application, under section 78 of the Bankruptcy Act, for the issue of a warrant for the arrest of a debtor or bankrupt; (d) an appeal, under subsection 82(5) of the Bankruptcy Act, against an estimate by the trustee of the value of a debt or liability provable in a bankruptcy; (e) an application, under section 153B of the Bankruptcy Act, for the annulment of a bankruptcy; (f) an application, under subsection 157(6) of the Bankruptcy Act, objecting to the appointment of a person as a trustee; (g) an appeal from a decision of a taxing officer, appointed under subsection 167(8) of the Bankruptcy Act, allowing or disallowing a bill of costs or charges, or an item in such a bill. (h) an application, under section 180 of the Bankruptcy Act, for acceptance of a trustee’s resignation from the office of trustee of an estate; (i) an application, under section 183 of the Bankruptcy Act, for release of a trustee from the trusteeship of an estate; (j) an application, under section 185Q of the Bankruptcy Act, for an order terminating a debt agreement; (k) an application, under section 185T of the Bankruptcy Act, for an order declaring that all, or a specified part, of a debt agreement is void; (l) an application, under section 222 of the Bankruptcy Act, for an order setting aside a personal insolvency agreement; (m) an application, under section 222 of the Bankruptcy Act (as applied by section 76B of that Act), for an order setting aside a composition or scheme of arrangement; (n) an application, under section 222C of the Bankruptcy Act, for an order terminating a personal insolvency agreement; (o) an application, under section 222C of the Bankruptcy Act (as applied by section 76B of that Act), for an order terminating a composition or scheme of arrangement; (p) an application, under section 252B of the Bankruptcy Act, for the annulment of the administration of the estate of a deceased person. #### 2.02 Exercise of powers by Registrars For the purposes of paragraph 35A(1)(h) of the Act, if the Court so directs, a Registrar may exercise a power of the Court under a provision of the Bankruptcy Act mentioned in Schedule 2. #### 2.03 Review of exercise of powers by Registrars (1) Subject to any direction by the Court to the contrary, an application under subsection 35A(5) of the Act for review of the exercise of a power of the Court by a Registrar under subsection 35A(1) of the Act must be made by interlocutory application within 21 days after the day on which the power was exercised. (2) An application under paragraph 35A(7)(b) of the Act may be made orally to the Registrar at the time that the Registrar is hearing the application for the exercise of a power mentioned in subsection 35A(1) of the Act. #### 2.04 Leave to be heard (1) The Court may grant leave to be heard in a proceeding to a person who is not a party to the proceeding. (2) The Court may grant the leave on conditions and may revoke the leave at any time. (3) The Court may order the person to pay costs if: (a) the granting of leave to the person causes additional costs for a party to the proceeding; and (b) the Court considers that the costs should be paid by the person. (4) The Court may also order that the person is not to be further heard in the proceeding until the costs are paid or secured to the Court’s satisfaction. (5) The Court may grant leave or make an order under this rule on the Court’s own initiative or on the application of a party or another person having an interest in the proceeding. (6) An application for leave or for an order must be made by filing an interim application in accordance with Form 3. #### 2.05 Appearance at application or examination (1) A person who intends to appear at the hearing of an application or petition, or take part in an examination, must file a notice of appearance in accordance with Form 4. (2) Rule 8.07 of the Federal Court Rules 2011 (changing a return date) does not apply to the return date fixed for a creditor’s petition. #### 2.06 Opposition to application, interim application or petition (1) In this rule: > application includes an interim application. (2) A person who intends to oppose an application or petition must, at least 3 days before the date fixed for the hearing of the application or petition or, with the leave of the Court, at the hearing: (a) file a notice of appearance in accordance with Form 4; and (b) file a notice in accordance with Form 5 stating the grounds of opposition; and (c) file an affidavit in support of the grounds of opposition; and (d) serve the notices and supporting affidavit on the applicant. ## Part 3—Bankruptcy notices #### 3.01 Substituted service An application for an order for substituted service of a bankruptcy notice must be accompanied by: (a) a copy of the bankruptcy notice; and (b) an affidavit stating the grounds in support of the application. #### 3.02 Setting aside bankruptcy notice (Bankruptcy Act s 41(6A), (6C) and (7)) (1) An application to set aside a bankruptcy notice must be accompanied by: (a) a copy of the bankruptcy notice; and (b) an affidavit stating: (i) the grounds in support of the application; and (ii) the date when the bankruptcy notice was served on the applicant; and (c) a copy of any application to set aside the judgment or order in relation to which the bankruptcy notice was issued and any material in support of that application. (2) If the application is based on the ground that the debtor has a counter‑claim, set‑off or cross demand mentioned in paragraph 40(1)(g) of the Bankruptcy Act, the affidavit must also state: (a) the full details of the counter‑claim, set‑off or cross demand; and (b) the amount of the counter‑claim, set‑off or cross demand and the amount by which it exceeds the amount claimed in the bankruptcy notice; and (c) why the counter‑claim, set‑off or cross demand was not raised in the proceeding that resulted in the judgment or order in relation to which the bankruptcy notice was issued. (3) The application and supporting documents must be served on the respondent creditor within 3 days after the application is filed. #### 3.03 Extension of time for compliance with bankruptcy notice (Bankruptcy Act s 41(6A) and (6C)) (1) An application for an extension of time for compliance with a bankruptcy notice must be accompanied by: (a) a copy of the bankruptcy notice; and (b) an affidavit stating: (i) the grounds in support of the application; and (ii) the date when the bankruptcy notice was served on the applicant; and (c) a copy of any application to set aside the judgment or order in relation to which the bankruptcy notice was issued and any material in support of that application. (2) The application may be made in the absence of a party. (3) If an order extending the time for compliance with a bankruptcy notice is made, the following documents must be served on the respondent creditor within 3 days after the order is made: (a) the application; (b) the order; (c) the supporting documents. (4) The application need be heard in open court only if it is for an extension of time to a date after the first directions hearing. ## Part 4—Creditors’ petitions #### 4.01 Application of Part 4 This Part applies in relation to a creditor’s petition seeking a sequestration order against the estate of a debtor. #### 4.02 Requirements for creditor’s petition and supporting affidavit (Bankruptcy Act s 47) (1) A creditor’s petition must be in accordance with Form 6. (2) The affidavit verifying the petition required by subsection 47(1) of the Bankruptcy Act may be in accordance with the affidavit set out in Part 2 of Form 6. (3) The petition must be accompanied by: (a) sufficient copies of the petition for service and proof of service; and (b) if the affidavit verifying the petition is not included in the petition in accordance with Part 2 of Form 6—an affidavit of a person who knows the relevant facts verifying the petition; and (c) if appropriate, the affidavits required by rule 4.04. (4) If the petition is accompanied by an affidavit of a person who knows the relevant facts verifying the petition in accordance with paragraph (3)(b), a copy of the petition must be attached to the affidavit. #### 4.03 Creditor’s petition founded on issue of execution against debtor (Bankruptcy Act s 40(1)(d)) (1) If a creditor’s petition is founded on an act of bankruptcy mentioned in paragraph 40(1)(d) of the Bankruptcy Act, the affidavit verifying the petition must state: (a) that, in consequence of the issue of execution against the debtor, property of the debtor has been sold by the sheriff or held by the sheriff for 21 days; or (b) that the writ or warrant of execution relating to the act of bankruptcy has been returned unsatisfied. (2) If paragraph (1)(b) applies, the affidavit must have attached to it a sealed or certified copy of the writ or warrant of execution returned unsatisfied. #### 4.04 Creditor’s petition founded on failure to comply with bankruptcy notice etc (Bankruptcy Act s 40(1)(g)) (1) If a creditor’s petition is founded on an act of bankruptcy mentioned in paragraph 40(1)(g) of the Bankruptcy Act, the petition must also be accompanied by: (a) an affidavit stating: (i) that the records of the Court and the records of the Federal Circuit 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 Circuit 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 Circuit Court, as applicable, for an order extending the time for compliance with the bankruptcy notice and the application has been finally decided; and (b) an affidavit of service of the relevant bankruptcy notice. > Note: For the definition of Federal Circuit Court, see section 4 of the Act. (2) If an application mentioned in subparagraph (1)(a)(ii) or (iii) was made, a copy of the order finally deciding the application must be attached to the affidavit required by paragraph (1)(a). #### 4.05 Documents to be served Unless the Court otherwise orders, at least 5 days before the date fixed for the hearing of a creditor’s petition, the applicant creditor must serve on the respondent debtor: (a) the creditor’s petition; and (b) a copy of the affidavit, or affidavits, verifying the petition required by subsection 47(1) of the Bankruptcy Act; and (c) if applicable, a copy of the affidavit required by paragraph 4.04(1)(a); and (d) if applicable, a copy of the affidavit of service of the bankruptcy notice required by paragraph 4.04(1)(b); and (e) a copy of any consent to act as trustee filed under section 156A of the Bankruptcy Act. #### 4.06 Additional affidavits to be filed before hearing (1) Before the hearing of a creditor’s petition, the applicant creditor must file the affidavits required by this rule. (2) The applicant creditor must file an affidavit that: (a) states that the documents required to be served under rule 4.05 have been served and when and how they were served; and (b) has attached to it a copy of the documents that were served and proof of service in relation to the documents. (3) The applicant creditor must file an affidavit of a person who has searched, or caused a search to be made, in the National Personal Insolvency Index no earlier than the day before the hearing date for the petition that: (a) sets out the details of any references in the Index to the debtor; and (b) states that there were no details of a debt agreement, about the debt on which the applicant creditor relies, in the Index: (i) on the day when the petition was presented; and (ii) on the day when the search was made; and (c) has attached to it a copy of the relevant extract of the Index. (4) The applicant creditor must file an affidavit of a person who knows the relevant facts that: (a) was sworn as soon as practicable before the hearing date for the petition; and (b) states that each debt on which the applicant creditor relies is still owing. (5) The applicant creditor must file a search affidavit if the debt stated in the petition is an amount payable to the applicant creditor under a judgment of a court that ordered the amount to be paid into the court. (6) In subrule (5): > search affidavit, in relation to a petition stating a debt ordered to be paid into a court, means an affidavit of a person who has searched in the proper office of the court, not earlier than the day before the hearing date for the petition, stating whether the amount of the debt, or part of that amount, has been paid as ordered. #### 4.07 Fax copy may be filed in certain cases If it is not practical for the applicant creditor to file the original of an affidavit mentioned in rule 4.06: (a) a fax copy of the affidavit may be filed; and (b) the applicant creditor must keep the original affidavit and produce it as directed by the Court. #### 4.08 Notification and entry of sequestration order (1) A sequestration order must be in accordance with Form 7. (2) If the Court makes a sequestration order against the estate of a debtor, the applicant creditor must: (a) on the same day as the order is made, notify the trustee, in writing, of his or her appointment; and (b) 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 Division 39.4 of the Federal Court Rules 2011. > 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. #### 4.09 Entry of order for dismissal etc of creditor’s petition (1) This rule applies if the Court makes an order: (a) dismissing a creditor’s petition; or (b) granting leave for a creditor’s petition to be withdrawn; or (c) under subsection 52(5) of the Bankruptcy Act. (2) The applicant creditor must: (a) if the order is not entered at the time the order is made—request entry of the order in accordance with Division 39.4 of the Federal Court Rules 2011 as soon as practicable; and (b) within 2 days after the order is made, give a copy of the order to the Official Receiver. #### 4.10 Service of order (1) This rule applies to an order of the Court that is entered under rule 4.08 or 4.09. (2) Within 2 days after the entry is stamped, the applicant creditor must give a copy of the order to: (a) any person who has consented to act as the trustee of the debtor’s estate under section 156A of the Bankruptcy Act; and (b) the Official Receiver for the District in which the order was made. ## Part 5—Debtors’ petitions #### 5.01 Referral of debtor’s petition (1) A referral to the Court by the Official Receiver of a debtor’s petition, for a direction to accept or reject the petition, must be in accordance with Form 8. > Note: For the circumstances in which the Official Receiver must refer a debtor’s petition to the Court for a direction to accept or reject the petition, see subsection 55(3B), section 56C and subsection 57(3B) of the Bankruptcy Act. (2) On receiving a referral, the Registrar must fix a time, date and place for the hearing of the referral. (3) At least 3 days before the date fixed for the hearing, the Official Receiver must serve a sealed copy of the referral, and notice of the time, date and place fixed for the hearing, on: (a) each debtor who presented the petition; and (b) each debtor listed in any relevant creditor’s petition; and (c) each creditor listed in the petition; and (d) if subsection 56C(4) of the Bankruptcy Act applies, the person administering the relevant proclaimed law. (4) The notice required by subrule (3) must be in accordance with the notice set out in Form 8. ## Part 6—Examinations ### Division 6.1—Interpretation #### 6.01 Definition for Part 6 In this Part: > relevant person means a relevant person within the meaning of section 81 of the Bankruptcy Act. > Note: Examinable person is defined in subsection 5(1) of the Bankruptcy Act. ### Division 6.2—Examination of debtor or examinable person #### 6.02 Application for summons (Bankruptcy Act s 50) (1) An application to the Court for a debtor, or an examinable person in relation to the debtor, to be summoned for examination must be accompanied by an affidavit complying with this rule. (2) The affidavit must identify: (a) the person sought to be examined; and (b) if that person is an examinable person in relation to a debtor, the debtor in relation to whom the examination is to be conducted. (3) If the application is for a person to be summoned to produce books at the examination, the affidavit must: (a) identify the books that are to be produced; and (b) state the grounds on which the person is required to produce the books. (4) The affidavit must state whether the applicant has made any inquiries about the issues to be dealt with at the proposed examination and, if so, set out details of the inquiries, including: (a) any request to the person to be examined to provide information about the debtor’s affairs or produce books for inspection; and (b) if a request to provide information or produce books has been made and complied with (including partly), details of the compliance; and (c) if a request to provide information or produce books has been made and not complied with, details of the failure to comply; and (d) if no request to provide information or produce books has been made, the reason. #### 6.03 Hearing of application The application may be heard in the absence of a party or in closed court. #### 6.04 Requirements for summons (1) A summons must be in accordance with Form 9. (2) A Registrar must: (a) sign and affix the stamp of the Court to the summons; and (b) give it to the applicant for service on the debtor or examinable person in relation to the debtor. (3) If the summons requires the debtor, or examinable person in relation to the debtor, to produce books at the examination, the summons must identify the books that are to be produced. #### 6.05 Service of summons At least 8 days before the date fixed for the examination, the applicant must: (a) serve the summons on the relevant person personally, or in another way directed by the Court or a Registrar; and (b) give written notice of the date, time and place fixed for the examination to each creditor of the relevant person of whom the applicant has knowledge. #### 6.06 Application for discharge of summons (1) A debtor or an examinable person who is served with a summons and wishes to apply for an order to discharge the summons may do so by filing: (a) an interim application in accordance with Form 3 in the proceeding in which the summons was issued; and (b) an affidavit setting out the grounds in support of the application. (2) As soon as possible after filing the interim application and supporting affidavit, the debtor or examinable person must serve a copy of each document: (a) on the person who applied for the summons; and (b) if the person who applied for the summons is not the Official Receiver, on the Official Receiver. ### Division 6.3—Examination of relevant person #### 6.07 Application for summons (Bankruptcy Act s 81) (1) An application to the Court or a Registrar for a relevant person to be summoned for examination in relation to the person’s bankruptcy must be in accordance with Form 10. (2) The application must be accompanied by: (a) a draft of each summons applied for; and (b) an affidavit identifying: (i) each relevant person to be summoned; and (ii) if the summons is to require the relevant person to produce books at the examination, the books that are to be produced. > Note: A relevant person may be required to produce books at an examination that are in the possession of the person and relate to the person or to any of the person’s examinable affairs—see subsection 81(1B) of the Bankruptcy Act. #### 6.08 Hearing of application The application may be heard in the absence of a party or in closed court. #### 6.09 Requirements for summons (1) A summons must be in accordance with Form 9. (2) A Registrar must: (a) sign and affix the stamp of the Court to the summons; and (b) give it to the applicant for service on the relevant person. (3) If the summons requires the relevant person to produce books at the examination, the summons must identify the books that are to be produced. #### 6.10 Service of summons At least 8 days before the date fixed for the examination, the applicant must: (a) serve the summons on the relevant person personally, or in another way directed by the Court or a Registrar; and (b) give written notice of the date, time and place fixed for the examination to each creditor of the relevant person of whom the applicant has knowledge. #### 6.11 Failure to attend examination If the relevant person does not attend the examination in accordance with the summons, the Court or a Registrar may: (a) adjourn the examination generally or to another day, time or place; or (b) discharge the summons. > Note: For the power of the Court or a Registrar to issue a warrant for the arrest of a relevant person who does not attend an examination in accordance with a summons, see section 264B of the Bankruptcy Act. #### 6.12 Application for discharge of summons (1) A relevant person who is served with a summons and wishes to apply for an order to discharge the summons may do so by filing: (a) an interim application in accordance with Form 3 in the proceeding in which the summons was issued; and (b) an affidavit setting out the grounds in support of the application. (2) As soon as possible after filing the interim application and supporting affidavit, the relevant person must serve a copy of each document: (a) on the person who applied for the summons; and (b) if the person who applied for the summons is not the Official Receiver, on the Official Receiver. ### Division 6.4—Examination of examinable person #### 6.13 Application for summons (Bankruptcy Act s 81) (1) An application to the Court or a Registrar for an examinable person to be summoned for examination in relation to the bankruptcy of a relevant person must be in accordance with Form 10. (2) A single application may be made for the summons of 2 or more examinable persons in relation to a relevant person’s bankruptcy. (3) The application must be accompanied by: (a) a draft of each summons applied for; and (b) an affidavit that complies with subrule (4). (4) The supporting affidavit must: (a) state whether the applicant is: (i) a creditor who has a debt provable in the bankruptcy; or (ii) the trustee of the relevant person’s estate; or (iii) the Official Receiver; and (b) state the facts relied on by the applicant to establish that each person to be summoned is an examinable person; and (c) if the summons is to require an examinable person to produce books at the examination: (i) identify the books that are to be produced; and (ii) give details of: (A) any inquiry by the applicant about the books to be produced; and (B) any refusal by the examinable person to cooperate with the inquiry. > Note: An examinable person may be required to produce books at an examination that are in the possession of the person and relate to the relevant person or to any of the relevant person’s examinable affairs—see subsection 81(1B) of the Bankruptcy Act. (5) 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”. (6) If the supporting affidavit is sent by electronic communication to a Registry for filing: (a) the affidavit may be marked “Confidential”; and (b) if the affidavit is so marked—the affidavit must be accompanied by a statement that the affidavit is a “confidential affidavit supporting an application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966”. (7) If the supporting affidavit is: (a) filed in a sealed envelope in accordance with subrule (5); or (b) marked “Confidential” as permitted by paragraph (6)(a); the Registrar must not make it available for public inspection. #### 6.14 Hearing of application The application may be heard in the absence of a party or in closed court. #### 6.15 Requirements for summons (1) A summons must be in accordance with Form 9. (2) A Registrar must: (a) sign and affix the stamp of the Court to the summons; and (b) send it to the applicant for service on each examinable person to be summoned for examination. (3) If the summons requires an examinable person to produce books at the examination, the summons must identify the books that are to be produced. #### 6.16 Service of summons At least 8 days before the date fixed for the examination, the applicant must: (a) serve the summons on each examinable person personally, or in another way directed by the Court or a Registrar; and (b) give written notice of the date, time and place fixed for the examination to each creditor of the relevant person of whom the applicant has knowledge. #### 6.17 Application for discharge of summons (1) An examinable person who is served with a summons and wishes to apply for an order to discharge the summons may do so by filing: (a) an interim application in accordance with Form 3 in the proceeding in which the summons was issued; and (b) an affidavit setting out the grounds in support of the application. (2) As soon as possible after filing the interim application and supporting affidavit, the examinable person must serve a copy of each document: (a) on the person who applied for the summons; and (b) if the person who applied for the summons is not the Official Receiver, on the Official Receiver. #### 6.18 Conduct money and witnesses expenses (1) A person (other than a relevant person) who, in accordance with a summons, attends an examination to give evidence or produce documents is entitled to be paid: (a) enough conduct money to cover the reasonable expenses of travelling from and to the place where the person lives, and any reasonable accommodation expenses; and (b) reasonable expenses for the person’s attendance as a witness. (2) The expenses must be paid by the applicant for the summons. (3) The expenses mentioned in paragraph (1)(a) must be paid a reasonable time before the person is to attend the examination. (4) In this rule: > conduct money means a sum of money or its equivalent, such as pre‑paid travel, sufficient to meet a person’s reasonable expenses of attending an examination and returning after so attending. ## Part 7—Annulment or review of bankruptcy ### Division 7.1—Annulment of bankruptcy #### 7.01 Application of Division 7.1 This Division applies to the following applications: (a) an application under section 153B of the Bankruptcy Act for the annulment of a bankruptcy; (b) an application under section 252B of the Bankruptcy Act for the annulment of the administration of the estate of a deceased person. #### 7.02 Requirements for application (1) The application must set out the grounds on which the annulment is sought. (2) The application must be served on the trustee at least 7 days before the hearing date fixed for the application. #### 7.03 Notice to creditors (1) The applicant must give notice of the application to each person known to the applicant to be a creditor of the bankrupt or a creditor of the estate of the deceased person. (2) The notice must be in accordance with Form 11. (3) The applicant must serve the notice on each creditor at least 7 days before the hearing date fixed for the application. #### 7.04 Report by trustee (1) If directed by the Court, the trustee must prepare a report for the periods before and after the bankruptcy or the administration of the estate of the deceased person. (2) If the report is in relation to a bankrupt, the report must include information about: (a) the bankrupt’s conduct; and (b) the bankrupt’s examinable affairs; and (c) the administration of the bankrupt’s estate. (3) If the report is in relation to the estate of a deceased person, the report must include information about the administration of the deceased person’s estate. (4) The report must: (a) be in the form of an affidavit; and (b) be filed at least 5 days before the date fixed for the hearing of the application. #### 7.05 Entry and service of annulment order If the Court orders an annulment, the applicant must: (a) unless the order is entered in the Court at the time it is made, enter the order within 1 day after it is made; and (b) within 2 days after the entry is stamped, give a copy of the order to the trustee and to the Official Receiver. ### Division 7.2—Review of sequestration order #### 7.06 Review of Registrar’s decision (1) This rule applies in relation to an application for review of a decision by a Registrar to make a sequestration order against the estate of a debtor (the bankrupt). (2) The application must be served on the trustee at least 7 days before the hearing date fixed for the application. (3) The applicant must give notice of the application to each person known to the applicant to be a creditor of the bankrupt. (4) The notice must be in accordance with Form 12. (5) The applicant must serve the notice on each creditor at least 7 days before the hearing date fixed for the application. (6) If directed by the Court, the trustee must prepare a report in relation to the bankrupt in accordance with rule 7.04. ## Part 8—Trustees #### 8.01 Objection to appointment of trustee (Bankruptcy Act s 157(6)) (1) An application objecting to the appointment of a person as a trustee must be accompanied by an affidavit stating the grounds in support of the application. (2) At least 28 days before the hearing date fixed for the application, the application and supporting affidavit must be served on the trustee and any petitioning creditor. (3) At least 14 days before the hearing date fixed for the application, the application and supporting affidavit must be served on each other person known to the applicant to be a creditor of the bankrupt or a creditor of the estate of the deceased person. > Note: Subsection 157(7A) of the Bankruptcy Act provides that, if the Court cancels the appointment of a trustee and appoints another trustee, the creditor who filed the objection must give the Official Trustee written notice of the cancellation and appointment as soon as practicable. #### 8.02 Resignation or release of trustee (Bankruptcy Act ss 180, 183) (1) An application for acceptance of a trustee’s resignation from the office of trustee of an estate, or release of a trustee from the trusteeship of an estate, must be accompanied by: (a) an affidavit stating the grounds in support of the application; and (b) if the application is for release of a trustee from the trusteeship of an estate: (i) a statement giving details of the realisation of the bankrupt’s property and the distribution of the estate by the trustee; and (ii) a copy of the most recent account required under subsection 173(1) of the Bankruptcy Act. (2) The application and supporting documents must be served on: (a) the Official Receiver; and (b) the bankrupt; and (c) anyone else (including a creditor) as ordered by the Court. (3) If the Court makes the order sought, the trustee must: (a) unless the order is entered in the Court at the time it is made, enter the order within 1 day after it is made; and (b) within 2 days after the entry is stamped, give a copy of the order to the Official Receiver. ## Part 9—Debt agreements #### 9.01 Application of Part 9 This Part applies to the following applications: (a) an application under section 185Q of the Bankruptcy Act for an order terminating a debt agreement; (b) an application under section 185T of the Bankruptcy Act for an order declaring that all, or a specified part, of a debt agreement is void. #### 9.02 Requirements for application (1) If the application is made by a creditor who also seeks a sequestration order, that must be stated in the application. (2) The application must be accompanied by: (a) a copy of the debt agreement; and (b) if the application is for an order terminating a debt agreement—an affidavit stating the facts relied on to satisfy the relevant prerequisite for making the order; and (c) if the application is for an order declaring that all, or a specified part, of a debt agreement is void—an affidavit stating the facts relied on to establish the relevant ground for applying for the order. > Note for paragraph (b): The prerequisites for making an order of the kind mentioned in paragraph (b) are set out in subsection 185Q(4) of the Bankruptcy Act. > Note for paragraph (c): The grounds for applying for an order of the kind mentioned in paragraph (c) are stated in subsection 185T(2) of the Bankruptcy Act. #### 9.03 Service At least 5 days before the date fixed for the hearing of the application, the application and each supporting document must be served on: (a) the debtor; and (b) if the applicant is not the Official Trustee—the Official Receiver. #### 9.04 Notice to creditors (1) At least 5 days before the date fixed for the hearing of the application, the applicant must serve a written notice of the time, date and place fixed for the hearing on each creditor known to the applicant. (2) The notice must be in accordance with Form 13. #### 9.05 Entry and service of order If the Court makes an order under this Part, the applicant must: (a) unless the order is entered in the Court at the time it is made, enter the order within 1 day after it is made; and (b) within 2 days after the entry is stamped, give a copy of the order to the Official Receiver. ## Part 10—Personal insolvency agreements #### 10.01 Application of Part 10 This Part applies to the following applications: (a) an application under section 222 of the Bankruptcy Act for an order setting aside a personal insolvency agreement; (b) an application under section 222C of the Bankruptcy Act for an order terminating a personal insolvency agreement; (c) an application under section 222 of the Bankruptcy Act (as applied by section 76B of that Act) for an order setting aside a composition or scheme of arrangement; (d) an application under section 222C of the Bankruptcy Act (as applied by section 76B of that Act) for an order terminating a composition or scheme of arrangement. #### 10.02 Requirements for application (1) If the application is made by a trustee or creditor who also seeks a sequestration order, that must be stated in the application. (2) The application must be accompanied by an affidavit stating: (a) the facts relied on to establish the relevant ground for making the order; and (b) if the application is for an order under subsection 222(2) or (5)—the facts relied on to satisfy the relevant prerequisite for making the order. > Note for paragraph (a): The grounds for making an order to which this Part applies are stated in subsections 222(1), (2) and (5) and section 222C of the Bankruptcy Act. > Note for paragraph (b): The prerequisites for making an order of the kind mentioned in paragraph (2)(b) are stated in subsections 222(4) and (7) of the Bankruptcy Act. #### 10.03 Service Unless the Court otherwise orders, at least 5 days before the date fixed for the hearing of the application, the application and supporting affidavit must be served on: (a) the debtor; and (b) the trustee of the estate; and (c) the Official Receiver. > Note: The Court may dispense with service on the debtor of notice of an application: see subsection 222(12) of the Bankruptcy Act. #### 10.04 Notice to creditors (1) At least 5 days before the date fixed for the hearing of the application, the applicant must serve a written notice of the time, date and place fixed for the hearing on each creditor named in the debtor’s statement of affairs. (2) The notice must be in accordance with Form 13. #### 10.05 Entry of order If: (a) the Court makes an order under this Part; and (b) the order is not entered at the time the order is made; the applicant must, as soon as practicable, request entry of the order in accordance with Division 39.4 of the Federal Court Rules 2011. ## Part 11—Administration of estates of deceased persons #### 11.01 Creditor’s petition (Bankruptcy Act s 244) A creditor’s petition for the making of an order for the administration of a deceased person’s estate must be: (a) in accordance with Form 14; and (b) accompanied by the affidavit verifying the petition required by subsection 244(5) of the Bankruptcy Act. #### 11.02 Additional affidavits to be filed before hearing of creditor’s petition (1) Before the hearing of a creditor’s petition, the applicant creditor must file the affidavits required by this rule. (2) The applicant must file an affidavit stating: (a) that the petition, the affidavit verifying the petition, and any consent to act as trustee filed under section 156A of the Bankruptcy Act, have been served on the legal personal representative of the deceased person or on someone else directed by the Court; and (b) how the documents were served. (3) The applicant must file an affidavit of a person who knows the relevant facts that: (a) was sworn not earlier than the day before the hearing date for the petition; and (b) states that each debt on which the applicant creditor relies is still owing. (4) The applicant must file an affidavit of a person who has searched in the National Personal Insolvency Index no earlier than the day before the hearing date for the petition that: (a) sets out the details of any references in the Index to the deceased person; and (b) states that there were no details of a debt agreement, in relation to the debt on which the applicant relies, in the Index on the day on which the petition was presented; and (c) has attached to it a copy of the relevant extract of the Index. (5) If a proceeding has been commenced in a court for the administration of the deceased person’s estate under a State or Territory law, the applicant creditor must file an affidavit of a person who knows the relevant facts setting out details of the proceeding. #### 11.03 Administrator’s petition (Bankruptcy Act s 247) A petition by a person administering the estate of a deceased person for an order for the administration of the estate must be in accordance with Form 15. > Note: Subsection 247(1) of the Bankruptcy Act provides that the petition must be accompanied by a statement, in duplicate, of the deceased person’s affairs and of the administrator’s administration of the deceased person’s estate. Regulation 11.01 of the Bankruptcy Regulations sets out the particulars that must be included in the statement. #### 11.04 Entry of order If: (a) the Court makes an order under this Part; and (b) the order is not entered at the time the order is made; the applicant must, as soon as practicable, request entry of the order in accordance with Division 39.4 of the Federal Court Rules 2011. > 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. ## Part 12—Warrants #### 12.01 Arrest of debtor or bankrupt (Bankruptcy Act s 78) (1) An application for the issue of a warrant for the arrest of a debtor or bankrupt must state the grounds for the issue of the warrant. (2) The application must be accompanied by an affidavit stating the facts in support of the application. (3) The warrant must be in accordance with Form 16. (4) If a debtor or bankrupt is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to a Registrar in the Registry from which the warrant was issued. > Note: See also subsection 130(2) of the Bankruptcy Act, which provides for the issue of a warrant for the seizure of property connected with a debtor or bankrupt. A suggested form for such a warrant is shown in Schedule 3 (Notes to these Rules). #### 12.02 Apprehension of person failing to attend Court (Bankruptcy Act s 264B(1)) (1) A warrant for the apprehension of a person who fails to comply with a summons must be in accordance with Form 17. (2) The Court or a Registrar may order that the warrant be kept in the Registry: (a) for a stated time; and (b) on any conditions that the Court or Registrar considers appropriate. (3) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to a Registrar in the Registry from which the warrant was issued. > Note: For the procedure to be followed if a person is apprehended under a warrant and it is not practicable to bring the person before the Court or a Registrar on the day the person is apprehended, see Part 14 of the Bankruptcy Regulations. ## Part 13—Costs ### Division 13.1—Orders for costs #### 13.01 Basis for costs (1) Subject to Division 13.2, a person who is entitled to costs in a proceeding to which the Bankruptcy Act applies is entitled to costs in accordance with Part 40 of the Federal Court Rules 2011 unless the Court otherwise orders. (2) In making an order for costs, the Court may fix the amount of the costs. (3) If the Court fixes the amount of the costs, 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. ### Division 13.2—Short form bills of costs #### 13.02 Application of Division 13.2 (1) This Division makes provision in relation to the costs that may be charged by a lawyer for a creditor for work done in relation to a petition against the estate of a debtor on the basis of an act of bankruptcy mentioned in paragraph 40(1)(g) of the Bankruptcy Act. (2) This Division does not apply if the Court fixes the amount of the costs. > Note: A debtor commits an act of bankruptcy under paragraph 40(1)(g) of the Act if the debtor does not: (a) comply with a bankruptcy notice issued on the application of a creditor who has obtained a final judgment or final order against the debtor; or (b) satisfy the Court that he or she has a counter‑claim, set‑off or cross demand equal to or more than the amount of the judgment debt that he or she could not have set up in the action or proceeding in which the judgment or order was obtained. #### 13.03 Short form bill of costs (1) If the Court makes a sequestration order against the debtor’s estate, the lawyer 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 lawyer 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. (3) The lawyer may also charge: (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 (b) proper disbursements incurred for the petition. (4) If the lawyer 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. #### 13.04 Claim for costs (1) A lawyer who wishes to claim costs must serve the documents mentioned in subrule (2) on: (a) if the Court makes a sequestration order—the trustee; or (b) if the petition is dismissed—the debtor. (2) For subrule (1), the documents are: (a) a bill of costs and disbursements; and (b) a copy of any receipts, vouchers or journals in support of the disbursements claimed. (3) The bill need not include an itemised account of the work or services performed. (4) If the trustee or debtor disputes any of the costs or disbursements, the trustee or debtor must give to the creditor a written notice stating the costs or disbursements disputed. (5) The notice must be given within 14 days after the bill is served. (6) At least 14 days after the lawyer serves the documents on the trustee or debtor, the creditor may file in the Court: (a) a copy of each document; and (b) an affidavit of service of the bill of costs and disbursements on the trustee or debtor; and (c) a copy of any notice given by the trustee or debtor under subrule (4). #### 13.05 Attendance at taxation hearing A creditor, the trustee, or a lawyer 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 lawyer to attend. ## Part 14—Proceedings under Cross‑Border Insolvency Act #### 14.01 Application of this Part and other rules of the Court Unless the Court otherwise orders: (a) this Part applies to a proceeding in the Court, under the Cross‑Border Insolvency Act, involving a debtor who is an individual; and (b) the rules in the other Parts of these Rules, and the other rules of the Court, apply to a proceeding in the Court under the Cross‑Border Insolvency Act if they are relevant and not inconsistent with this Part. > Note: See rule 1.04 for definitions of Cross‑Border Insolvency Act and Model Law. #### 14.02 Expressions used in the Cross‑Border Insolvency Act (1) Unless the contrary intention appears, an expression used in this Part and in the Cross‑Border Insolvency Act, whether or not a particular meaning is given to the expression by the Cross‑Border Insolvency Act, has the same meaning in this Part as it has in the Cross‑Border Insolvency Act. > Note: The following expressions used in this Part (including in the notes to this Part) are defined in the Model Law as having the following meanings: > Note: establishment means any place of operations where the debtor carries out a non‑transitory economic activity with human means and goods or services. > Note: foreign court means a judicial or other authority competent to control or supervise a foreign proceeding. > Note: foreign main proceeding means a foreign proceeding taking place in the State where the debtor has the centre of its main interests. > Note: foreign non‑main proceeding means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment as defined in the Model Law. > Note: foreign proceeding means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation. > Note: foreign representative means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding. (2) This Part is to be interpreted in a manner that gives effect to the Cross‑Border Insolvency Act. #### 14.03 Application for recognition (1) An application by a foreign representative for recognition of a foreign proceeding under article 15 of the Model Law must be made by filing an application in accordance with Form 2. (2) The application must: (a) be accompanied by the statements mentioned in article 15 of the Model Law and in section 13 of the Cross‑Border Insolvency Act; and (b) name the foreign representative as the applicant and the debtor as the respondent; and (c) be accompanied by an affidavit verifying the matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in section 13 of the Cross‑Border Insolvency Act. (3) When filing the application, the foreign representative must file, but need not serve, an interim application seeking directions as to service, and the Court may give any directions about service, and make any incidental orders, that it thinks just. (4) The applicant must serve a copy of the application and the other documents mentioned in subrule (2): (a) unless the Court otherwise orders—on each respondent (if any) to the proceeding as soon as practicable after filing an application and, in any case, at least 5 days before the date fixed for hearing; and (b) on any other persons the Court may direct at the hearing of the interim application. (5) A person who intends to appear before the Court at the hearing of an application for recognition must file and serve the documents mentioned in rule 2.05. #### 14.04 Application for provisional relief under article 19 of the Model Law (1) Any application by the applicant for provisional relief under article 19 of the Model Law must be made by filing an interim application in accordance with Form 3. (2) Unless the Court otherwise orders, the interim application and any supporting affidavit must be served on each respondent at least 3 days before the date fixed for the hearing of the interim application. #### 14.05 Registered trustee’s consent to act If an application is made for an order: (a) under article 19 or 21 of the Model Law to entrust the administration or realisation of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative); or (b) under article 21 to entrust the distribution of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative); then, unless the Court otherwise orders, the person must: (c) be a registered trustee; and (d) have filed a Consent to Act, in accordance with Form 18, that specifies an address for service for the person within Australia. > Note registered trustee is defined in subsection 5(1) of the Bankruptcy Act. #### 14.06 Notice of filing of application for recognition (1) Unless the Court otherwise orders, the applicant in a proceeding mentioned in rule 14.03 must: (a) send a notice of the filing of the application in accordance with Form 19 to each person whose claim to be a creditor of the respondent is known to the applicant; and (b) publish a notice of the filing of the application: (i) in accordance with Form 19; and (ii) once in a daily newspaper circulating generally in the State or Territory where the respondent has his or her principal, or last known, place of residence. (2) The Court may direct the applicant to publish a notice in accordance with Form 19 in a daily newspaper circulating generally in any State or Territory not described in subparagraph (1)(b)(ii). #### 14.07 Notice of order for recognition, withdrawal etc (1) If the Court makes an order for recognition of a foreign proceeding under article 17 of the Model Law, or makes any order under article 19 or 21 of the Model Law, the applicant must, as soon as practicable after the order is made, do all of the following: (a) have the order entered; (b) serve a copy of the entered order on the respondent; (c) send a notice of the making of the order in accordance with Form 20 to each person whose claim to be a creditor of the respondent is known to the applicant; (d) publish a notice of the making of the order in accordance with Form 20, in accordance with subparagraph 14.06(1)(b)(ii). (2) The Court may direct the applicant to publish the notice in accordance with Form 20 in a daily newspaper circulating generally in any State or Territory not described in subparagraph 14.06(1)(b)(ii). (3) If the application for recognition is withdrawn or dismissed, the applicant must, as soon as practicable, do all of the following: (a) for a dismissal—have the order of dismissal entered; (b) serve a copy of the entered order of dismissal or notice of the withdrawal, on the respondent; (c) send a notice of the dismissal or withdrawal in accordance with Form 21 to each person whose claim to be a creditor of the respondent is known to the applicant; (d) publish a notice of the dismissal or withdrawal in accordance with Form 21, in accordance with subparagraph 14.06(1)(b)(ii). (4) The Court may direct the applicant to publish the notice in accordance with Form 21 in a daily newspaper circulating generally in any State or Territory not described in subparagraph 14.06(1)(b)(ii). #### 14.08 Relief after recognition (1) If the Court has made an order for recognition of a foreign proceeding, any application by the applicant for relief under paragraph 1 of article 21 of the Model Law must be made by filing an interim application, and any supporting affidavit, in accordance with Form 3. (2) Unless the Court otherwise orders, an interim application under subrule (1) and any supporting affidavit must be served at least 3 days before the date fixed for the hearing of the interim application on the following persons: (a) the respondent; (b) any person that the Court directed be served with the originating process by which the application for recognition was made; (c) any other person that the Court directs. (3) A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.05. #### 14.09 Application to modify or terminate an order for recognition or other relief (1) This rule applies to: (a) an application under paragraph 4 of article 17 of the Model Law for an order modifying or terminating an order for recognition of a foreign proceeding; and (b) an application under paragraph 3 of article 22 of the Model Law for an order modifying or terminating relief granted under article 19 or 21 of the Model Law. (2) The application must be made by filing an interim application in accordance with Form 3. (3) An interim application and any supporting affidavit must be served on: (a) for an application under paragraph (1)(a)—the respondent and other persons who were served with, or filed a notice of appearance in relation to, the application for recognition; and (b) for an application under paragraph (1)(b)—the respondent and other persons who were served with, or filed a notice of appearance in relation to, the application for relief under article 19 or 21. (4) Unless the Court otherwise orders, the applicant must: (a) send a notice of the filing of the application in accordance with Form 22 to each person whose claim to be a creditor of the respondent is known to the applicant; and (b) publish a notice of the filing of the application in accordance with Form 22, in accordance with subparagraph 14.06(1)(b)(ii). (5) The Court may direct the applicant to publish the notice in accordance with Form 22 in a daily newspaper circulating generally in any State or Territory not described in subparagraph 14.06(1)(b)(ii). (6) A person who intends to appear before the Court at the hearing of the application must file and serve the documents mentioned in rule 2.05.