Federal Court of Australia

Guide to modified Form 2 Federal Court (Bankruptcy) Rules 2005: Application to set aside bankruptcy notice and/or to extend time for compliance

Guide to Form 2

Please read this guide and the form carefully. As the applicant, you are responsible for making sure all your paperwork is in order. Although the Court’s Registry staff can check your forms and other court papers for completeness (for example, they check for signatures, and that attachments are present and signed by an authorised person within your State or Territory) and give you information about the Court’s procedures, they can not give you legal advice and they are not responsible for the accuracy of your documents.


When should you use the modified Form 2?

You should use this form in the following situations.

1. Where you have filed an application in another court to set aside the judgment referred to in the bankruptcy notice, and you require the time for compliance with the notice to be extended until that application is heard; or

2. Where you wish to make an application to the Federal Court to set aside the bankruptcy notice, and you require the time for compliance with the notice to be extended until this is heard; or

3. Where you wish to apply to the Federal Court to set aside the bankruptcy notice on the ground that you have a counter claim, set off or cross demand which you could not have raised in the proceeding which resulted in the judgment against you.

The application must be filed before the time for compliance expires in order to get an extension of time up to the hearing of the applications.


How do you apply?

If you make an application to the Court you will be called the applicant. You must follow these steps to make an application.

1. You must complete an Application to Set Aside Bankruptcy Notice and/or to Extend Time for Compliance. This application is made using Form 2 of the Federal Court (Bankruptcy) Rules 2005. A special copy of this form, which has been prepared for applications to set aside bankruptcy notice and/or to extend time for compliance is available from the Registry or the Court's website.

2. Get a Form 59 and fill it out. This is the affidavit. An affidavit is a written statement, affirmed or sworn before a solicitor or Justice of the Peace. The affidavit must set out the facts that support the reasons for your application. If there are any papers you want to attach to the affidavit then the person who witnesses your signature on the affidavit must also sign the attachments at the same time. A copy of the form for an affidavit is available from the Registry or the Court's website. A guide to filling out the affidavit is provided below.

3. The original application and affidavit plus a copy of each document for the creditor any other party must be delivered to the Federal Court. You can do this by bringing the documents to the Court, or by posting or faxing them, or by sending them by the internet. This is called filing. More information about filing is available from the Registry and on the Court’s website.

Make sure you have a copy of the application form and affidavit for yourself.

4. Pay the application fee. If you cannot afford this fee you may be able to ask the Court to reduce it*. You can get a form to ask the Court to reduce payment and information about the circumstances where a reduction can be given on the Exemption and reduction of fees pages or from the Registry.

* Note: Up to October 2010, the Court could waive Court fees in some circumstances. Changes to the Federal Court of Australia Regulations 2004 introduced on 1 November 2010 means the Court can no longer waive fees; the Court can however, reduce the payment of Court fees if it will result in financial hardship.

5. If the documents are in the correct form the Court’s Registry staff will stamp the original and the copies of each document. The Registry will also write on the Application the time date and place when the parties need to come to the Court for a directions hearing. This is the date on which the application will first be considered by the Court.

6. A stamped copy of the documents must be personally served on the creditor and any other party within 3 days of the date on which the documents were filed in the Court. For information about personal service see Division 10.1 of the Federal Court Rules 2011.

7. If the Registry has made an interlocutory or interim order extending the time for compliance with the bankruptcy notice, then a copy of that order must also be served on the creditor and any other party with the application and other documents.


How to fill in your Application to Set Aside the Bankruptcy Notice and/or Extend Time for Compliance

Please read all of these notes before you begin completing the Application.

These instructions assume that you are the applicant in the proceeding and that you are not represented by a lawyer.


Heading

The applicant is the person who starts the proceeding by filing an application. The respondent is the person who opposes or agrees to the orders which the applicant wants the Court to make. There can be more than one applicant or respondent.

In the spaces provided write:


First paragraph

This paragraph refers to the sections of the Bankruptcy Act under which the application is being made.

If you want the Court to order an extension of time for complying with the bankruptcy notice, delete the references to s 30 and s 41(7).

If you want the Court to set aside the bankruptcy notice, delete the references to s 30 and s 41(6A)

If you want the Court to make some other order, delete the references to s 41(6A) and s 41(7).


Notice to the Respondent

In the space provided, write the address of the respondent (the creditor).

The Court will insert the time and date for the hearing of the application.


Part A. Final orders sought by applicant

In Part A you must set out the final orders you want the Federal Court to make at the hearing.

If you want the Court to set aside the bankruptcy notice, then complete paragraph number 1 by inserting the number of the bankruptcy notice and the date on which it was served on you.

If you are not applying to have the bankruptcy notice set aside, then delete paragraph 1.


Part B. Interim orders sought by applicant

Part B should be completed if you want an order made before the final hearing of the application to set aside the bankruptcy notice. In most cases this is an application for an extension of time for compliance up to hearing of the application.

In the space provided in paragraph 1, write the date to which you want the extension of time. This will usually be the date of the final hearing to set aside the bankruptcy notice.

A Registrar will determine whether an order should be made extending the time for compliance with the bankruptcy notice. If an order is made, it will specify the new date for compliance. A copy of the order will be given to you, with a direction that you serve a copy of that order with the application.


Part D. Abridgment of service

The application must be served within 3 days of the date on which it is filed. If this time has been shortened by an order of the Registrar then the date of that order must be inserted in the space provided.


Part D. Service

Indicate whether or not the application is to be served on any person.

If the application is to be served, at the end of Part D write the name and address of each party on whom you will be serving a copy of the application.


Date and signature

The application must be signed and dated.


Filing details

Under the horizontal line on the first page of the application, write:


How to fill in your Affidavit in support of your Application to Set Aside the Bankruptcy Notice and/or Extend Time for Compliance

You can get a copy of Form 59 from the Registry or download a copy from the Court’s website.

Please read all of these notes before you begin completing the Affidavit.


Heading

In the spaces provided insert:

These should be the same names as those used in the application form.


First paragraph

In the spaces provided, write:


The main part (‘body’) of the affidavit

The affidavit should set out, in numbered paragraphs, the facts that support the matters set out in the application. There is no limit to the number of paragraphs contained in an affidavit. Each paragraph should deal with a separate issue.

Under the Federal Court (Bankruptcy) Rules 2005, the affidavit in support must contain:

An affidavit in support of an application to set aside the bankruptcy notice on the ground that the applicant has a counter claim, set off or cross demand must also state:

A copy of the bankruptcy notice should be annexed (attached) to the affidavit.

If the affidavit refers to any other document then a copy of that document may also be annexed. Each annexed document must be marked with a letter (eg "A" for the first annexure, "B" for the second annexure, and so on), and must include the following annexure note which can be handwritten on the first page of the annexure

" This and the following ……. [insert number of pages] pages is the annexure marked "A" in the affidavit of ……….. [insert name of person making the affidavit] sworn before me on ……………………[insert date including year]

Signed: ………………………

The solicitor or Justice of the Peace witnessing the affidavit must sign every annexure note.


Swearing or affirming the affidavit

Do not sign the affidavit straight away.

The person making the affidavit must first take an oath or affirmation in front of a solicitor or Justice of the Peace. Only after the oath or affirmation has been taken can the affidavit be signed. The solicitor or Justice of the Peace must then also sign and date the affidavit and any papers attached to it.

If the affidavit is more than one page, then the person making the affidavit and the solicitor or Justice of the Peace must sign each page.


Filing details

Under the horizontal line on the first page of the affidavit, write:

 

(February 2006; revised August 2011)