Commonwealth Numbered Regulations

FEDERAL MAGISTRATES COURT RULES 2001 2001 NO. 195 - SCHEDULE 2

Part 1 General

Part 2 Dissolution of marriage

(rule 25.01)

(rule 25.07)

(rule 25.08)

(rule 25.03)

(rule 25.05)

(rule 25.05)

(rule 25.06)

Part 3 Bankruptcy

(rule 29.03)

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

On the grounds stated in the accompanying affidavit or statement of claim, the applicant claims:
1. ( Specify in numbered paragraphs all final relief sought. )
2.
3.

( Complete this section if you wish to claim interlocutory relief. )
AND the applicant claims by way of interlocutory relief:
1. ( Specify in numbered paragraphs all interlocutory relief sought .)
2.
3.
Date:
( signed, applicant or applicant's lawyer )

( Complete this section if there is a respondent. )
TO the respondent of ( insert address ):
This application has been set down for the time and place stated below. If you or your legal representative do not attend the Court at that time, the application may be dealt with and judgment may be given, or an order made, in your absence. As soon after the time mentioned as the business of the Court will allow, any of the following may happen:

(a)

the application may be heard;

(b)

directions may be given for the further conduct of the proceeding;

(c)

any application for interlocutory relief may be heard.

Before any attendance at Court, you must file an appearance in the Registry.
Time and date for hearing: ( to be entered by Registry unless fixed by Court )

Place: ( address of Court )

( Complete this section if the time for service has been abridged. )
The time by which this application is to be served has been abridged by order made on ( insert date ) to ( insert time and date ).

Date:

( signed, Registrar )

This application is filed by ( insert name ) for ( insert name ) whose address for service is ( insert address ).
The applicant's address is ( if the applicant is an individual, specify place of residence or business; if the applicant is a corporation, specify principal place of business ).
It is not intended to serve this application on any person.
OR
It is intended to serve this application on each person listed below:
( insert name of each person on whom application is to be served )

(rule 29.06)

A.B.
of ( address ) ( occupation ) appears.
If a person under disability, his or her tutor is: C.D.
( Add other notices if applicable.)

Solicitor: ( name )

( address )

telephone: ( number )

facsimile: ( number )

email address:

Solicitor's agent: ( name )

( address )

telephone: ( number )

facsimile: ( number )

email address:

Address for service: ( the office of his or her lawyer, or as the case may be)
( This notice of appearance may be added to a notice of motion of a person applying to be added as a respondent. )
( If a respondent wishes to enter a conditional appearance insert ` conditionally ' after `appear' .)

(rule 29.07)
( Name of opponent ), ( specify capacity of opponent, eg creditor, trustee ), intends to oppose the *application/*petition on the following grounds:

1. } ( set out grounds of opposition )
2. }
3. }
An affidavit supporting the grounds of opposition is filed with this notice.
This notice is filed by ( name of lawyer for opponent ) for ( name of opponent ).
The opponent's address for service is: ( address for service ).
Date:
( signed, opponent or opponent's lawyer )

* Omit if inapplicable

(rule 31.02)

The applicant creditor ( name and address of applicant ) applies to the Court for a sequestration order under section 43 of the Bankruptcy Act 1966 against the estate of ( name, address and occupation of respondent debtor ).
1. The respondent debtor owes the applicant creditor the amount of ($  amount ) for ( statement of reason for and details of the debt ).
2. EITHER
The applicant creditor does not hold security over the property of the respondent debtor.
OR
The applicant creditor holds security over the property of the respondent debtor to the value of ($ amount ) and consisting of ( statement of particulars of security ), and:
EITHER

(a)

is willing to surrender this security for the benefit of creditors generally if a sequestration order is made against the respondent debtor;

OR

(b)

the value of the property is ($ amount ), which leaves an unsecured debt of ($ amount ).

Note
If there is more than 1 applicant creditor, the form may be appropriately amended.

3. At the time when the act of bankruptcy was committed, the respondent debtor:

* was personally present in Australia

* was ordinarily resident in Australia

* had a dwelling house or place of business in Australia

* was carrying on business in Australia either personally or by an agent or manager

* was a member of a firm or partnership carrying on business in Australian by means of partners or agent or manager.

4. The following act of bankruptcy was committed by the respondent debtor within 6 months before the presentation of this petition:
( Give full details of the act of bankruptcy mentioned in section 40 of the Bankruptcy Act 1966 on which you are relying, including details of any judgment on which a bankruptcy notice is founded. )
Date:
( signed, petitioner or lawyer for petitioner )
To: ( name of respondent debtor )
( address )
This petition has been set down for hearing by the Court at the time, date and place specified below. If there is no appearance by you or your legal representative at that time, the petition may be dealt with in your absence and a sequestration order made against you.
If you wish to appear at the hearing, you must file and serve a notice of appearance.
If you wish to appear at the hearing and oppose this petition, you must:

(a)

enter an appearance and file a notice of intention to oppose the petition, in accordance with Form 149, and an affidavit supporting the grounds; and

(b)

serve a copy of each document on the creditor at the address for service stated below not less than 3 days before the date for the hearing of this petition stated below; and

(c)

attend at the Court on the date for the hearing stated below.

Time and date for hearing: ( to be entered by Registry )
Place: ( address of Court )
Date:
( signed, Registrar )
This petition is filed by ( name of lawyer for petitioner ) for ( name of petitioner ).
The petitioner's address for service is: ( address for service ).
* Omit if inapplicable

(rules 31.07, 33.04, 33.11)

TO: ( name and address of person summoned )

1. You are required to attend before *the Court/*a Registrar/*a magistrate at the time, date and place stated below to be examined on oath under * section 50/*section 81 of the Bankruptcy Act 1966 and to give evidence in relation to the examinable affairs of ( name of bankrupt or debtor ).

*

Omit if inapplicable

2. You are also required to bring the following books with you and produce them at the examination:
( list books required )
Time and date for examination: ( to be inserted by Registry )
Place: ( address of Court )
Date:
( signed, Registrar )
This summons was issued on the application of ( name of applicant ), ( specify the capacity of the applicant under subsection 81 (1) of the Bankruptcy Act 1966, eg creditor, trustee ), whose address for service is ( address ).

Note 1 Section 5 of the Bankruptcy Act 1966 defines "examinable affairs", in relation to a person, to mean:

(a)

the person's dealings, transactions, property and affairs; and

(b)

the financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the bankrupt or to any of his or her conduct, dealings, transactions, property and affairs.

( Use the following note for a summons addressed to the bankrupt. Otherwise omit it. )

Note 2 If you do not comply with this summons, a warrant for your apprehension (arrest) may be issued under section 264B of the Bankruptcy Act 1966 .

( Use the following notes for a summons addressed to a person who is not the bankrupt. Otherwise omit them. )

Note 2 If you do not comply with this summons, a warrant for your apprehension (arrest) may be issued under section 264B of the Bankruptcy Act 1966 . However, a warrant will not be issued if you were not given a reasonable amount for expenses.

Note 3 You may apply to have this summons discharged by filing a notice of motion and affidavit.

(rule 31.08)

FEDERAL MAGISTRATE/REGISTRAR:
DATE OF ORDER:
WHERE MADE:
THE COURT ORDERS THAT:
1. A sequestration order be made against the estate of ( name of debtor ).
2. The applicant creditor's costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 .
The Court notes that the date of the act of bankruptcy is ( date ).
Date entered:

(rules 32.02, 32.03)

The debtor ( name of debtor ) has presented a debtor's petition to the Official Receiver.
Creditor's petition No. ( insert number ) of ( insert year ) is pending against a number of debtors or a partnership and includes this debtor.
A copy of the debtor's petition and statement of affairs is filed with this referral.
The Court is asked to give a direction to accept or reject the petition.
Date:
( signed, Official Receiver )
Official Receiver
NOTICE TO OFFICIAL RECEIVER, DEBTORS AND APPLICANT CREDITOR:
This referral has been set down for hearing by the Court at:
Time and date: ( to be entered by Registry )
Place: ( address of Court )
Date:
( signed, Registrar )

(rules 33.03, 33.08)

On the grounds set out in the accompanying affidavit, the applicant requests the Registrar to issue a summons under section 81 of the Bankruptcy Act 1966 in accordance with the accompanying draft summons(es) to the following:
A. Relevant person(s):
*to give evidence:
OR
*to give evidence and produce documents:
( list and give details of name and address of each relevant person )
AND/OR
B. Examinable persons:
*to give evidence:
OR
*to give evidence and produce documents:
( list and give details of name and address of each examinable person )
Date:
( signed, applicant or applicant's lawyer )

* Omit if inapplicable

(rule 35.03)

TAKE NOTICE that on ( date and time ) at ( place ), ( name of debtor or person administering estate of deceased debtor ) will be applying for the annulment of the bankruptcy.
If a creditor wishes to take part in the hearing, the creditor must file and serve a notice of appearance at least 3 days before the hearing date stated above.
This notice is given by ( name of applicant and applicant's lawyer ) who may be contacted at ( address, telephone and facsimile numbers ).

(rules 37.03, 38.05)

An application for ( state nature of application, including any application for sequestration order ) has been made to the Court by ( name of applicant ), ( state the capacity of the applicant, eg creditor, debtor or trustee, and relevant section of the Bankruptcy Act 1966 ).
The application is to be heard at:
Time and date: ( to be inserted by Registry )
Place: ( address of court )
Copies of the application and affidavits in support are available from the applicant at the address stated below.
If you wish to take part in the proceeding, a notice of appearance must be filed and served 3 days before the hearing.
The applicant ( or applicant's lawyer ) can be contacted at ( address, telephone and facsimile numbers ).

(rule 39.01)

The applicant creditor ( name and address of creditor ) applies to the Court for an order of administration in bankruptcy of the estate of the late ( name of deceased debtor ) who died on ( date of death ).
1. The estate of the deceased debtor owes the applicant creditor the amount of ($ amount ) for ( statement of reason for the debt ). This debt is a liquidated sum payable immediately or at a certain future time.
2. EITHER
The applicant creditor does not hold security over the property of the deceased debtor.
OR
The applicant creditor holds security over the property of the deceased debtor to the value of ($ amount ) and consisting of ( statement of particulars of security ), and

EITHER

(a)

is willing to surrender this security for the benefit of creditors generally if a sequestration order for administration of the estate in bankruptcy in made;

OR

(b)

the value of the property is ($  amount ), which leaves an unsecured debt of ($ amount ).

Note
If there is more than 1 creditor, this form may be appropriately amended.

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

* was personally present in Australia

* was ordinarily resident in Australia

* had a dwelling house or place of business in Australia

* was carrying on business in Australia either personally or by an agent or manager

* was a member of a firm or partnership carrying on business in Australia by means of partners or agent or manager.

4. (Also state any details of the status of any authorisation to administer the deceased person's estate.)

Date:

( signed, petitioner or lawyer for petitioner )
TO: ( legal personal representative of the deceased debtor or other person as directed by the Court under subsection 244 (9) of the Bankruptcy Act 1966 )
( address )
This petition has been set down for hearing by the Court at the time and place stated below. If there is no appearance by you or your legal representative at that time, the petition may be dealt with in your absence and a sequestration order made against the estate of the deceased debtor.
If you wish to appear at the hearing, you must file and serve a notice of appearance.
If you wish to appear at the hearing and oppose this petition, you must:

(a)

enter an appearance and file a notice of intention to oppose the petition, in accordance with Form 149, and an affidavit supporting the grounds; and

(b)

serve a copy of each document on the creditor at the address for service stated below not less than 3 days before the date for the hearing of this petition stated below; and

(c)

attend at the Court on the date for the hearing stated below.

Time and date for hearing: ( to be entered by Registry )
Place: ( address of Court )
Date:
( signed, Registrar )
This petition is filed by *( name of petitioner )/*( lawyer for the petitioner ) on behalf of ( name of petitioner ).
The petitioner's address for service is: ( address for service ).
* Omit if inapplicable

(rule 39.04)

The applicant , ( name and address of administrator ), applies to the Court for an order of administration in bankruptcy of the estate of the late ( name of the deceased person ) who died on ( date of death ).
1. The applicant is the administrator of the deceased debtor's estate.
2. The affairs of the deceased debtor and of my administration of the estate are set out in the documents accompanying this petition. To the best of my belief, it is a true and complete statement.

Note :
If there is more than 1 administrator, the form may be appropriately amended.

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

* was personally present in Australia

* was ordinarily resident in Australia

* had a dwelling house or place of business in Australia

* was carrying on business in Australia either personally or by an agent or manager

* was a member of a firm or partnership carrying on business in Australia by means of partners or agent or manager.

Date:
( signed, petitioner )
Before:
( signature, name, address and occupation of witness )
This petition has been set down for hearing by the Court at the time, date and place specified below.
Time and date for hearing: ( to be entered by Registry )
Place: ( address of Court )
Date:
( signed, Registrar )
This petition is filed by ( name of lawyer for petitioner ) for ( name of petitioner ).
The petitioner's address for service: ( address for service ).

* Omit if inapplicable

(rule 40.01)

TO:  ( name of officer ), a *member/*special member of the Australian Federal Police and to all other members and special members of the Australian Federal Police and to all constables of police throughout the Commonwealth and to the Governor or Keeper of Her Majesty's Gaol at ( place ) and to the Governor or Keeper of any of Her Majesty's Gaols within the Commonwealth.
BECAUSE of evidence taken on oath, the Court has reason to believe that ( name of debtor or bankrupt ), against whom a bankruptcy notice has been issued, has absconded with a view to avoiding payment of *his/*her debts ( or otherwise as the case may be in accordance with the wording of section   78 of the Bankruptcy Act 1966 ).
THIS warrant therefore requires and authorises you, ( name of officer ), and all other constables to whom this warrant is addressed, to take ( name of debtor or bankrupt ) and to deliver *him/*her to the Governor or Keeper of Her Majesty's Gaol at ( place ), and you the Governor or Keeper are to receive ( name of debtor or bankrupt ) and keep *him/*her safely in the gaol and in your custody until the Court otherwise orders.
THIS warrant also requires and authorises you, ( name of officer ), and all other constables to whom this warrant is addressed, to seize any property, books, documents, papers and writings in the possession of the *debtor/*bankrupt, and to deliver them into the custody of ( full name and address of person named in Court's order ) to be kept by that person until the Court makes an order for their disposal.
Dated:
( signed, Registrar )

* Omit if inapplicable

(rule 40.02)

TO: ( name of officer ), a *member/*special member of the Australian Federal Police and to all other members and special members of the Australian Federal Police and to all constables of police throughout the Commonwealth and to the Governor or Keeper of Her Majesty's Gaol at ( place ), and to the Governor or Keeper of any of Her Majesty's Gaols within the Commonwealth.
BY summons dated ( insert date ), and directed to ( full name and address of person named in summons ), ( person named in summons ) was required to appear personally before *the Court/*a Registrar/*a Magistrate at ( insert time ) at ( insert address at which examination or other proceeding was to have been held ), AND which summons was, as has been proved on oath, served on ( name of person ) on ( insert date ).
^[daggerdbl] AND a reasonable amount was tendered to ( name of person ) for expenses, AND, without reasonable excuse, the person failed to appear as required by the summons.
THIS warrant therefore requires and authorises you, ( name of officer ), and all other constables to whom this warrant is addressed, to take ( name of person ) and bring *him/*her up for examination.
THIS warrant also requires and authorises you, if ( name of person ) cannot immediately be brought before *the Court/*a Registrar/*a Magistrate, to deliver *him/*her to the Governor or Keeper of Her Majesty's Gaol at ( place ) and you the Governor or Keeper are to receive ( name of person ) and keep *him/*her safely in the gaol and in your custody until *the Court/*a Registrar/*a Magistrate otherwise orders, and you are to produce *him/*her before *the Court/*a Registrar/*a Magistrate as *the Court/*a Registrar/*a Magistrate directs.
THIS warrant also informs you, ( name of officer ), and all other constables to whom this warrant is addressed, that subsection 264B (4) of the Bankruptcy Act 1966 empowers you to break and enter any place or building for the purpose of executing this warrant.
Dated:
(signed, Registrar)

* Omit if inapplicable

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