Federal Court of Australia

Guide to Form 6 of the Federal Court (Bankruptcy) Rules 2005: Creditor’s Petition

Please read this guide and the form carefully. As the applicant creditor 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 Form 6?

This form should be used if you are a creditor and you wish to apply to the Court under the Bankruptcy Act 1966 for a sequestration (bankruptcy) order against someone who owes you more than $5000.

How do you apply?

If you present a creditor’s petition to the Court you will be called the "applicant creditor" and the other party (or parties) who owes you money will be called the "respondent debtor". Follow these steps:

1. Get a Form 6 of the Federal Court (Bankruptcy) Rules 2005 and fill it out. This is the creditor’s petition. You can get a copy of Form 6 from the Registry or download a copy from the Court’s website.

2. There must be an affidavit verifying the petition. 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 orders sought in the petition.

You may use the affidavit in Part 2 of Form 6, or make a separate affidavit using a Form 59 of the Federal Court Rules 2011. You can get a copy of Form 59 from the Registry or download a copy from the Court’s website.

If you use a Form 59, a copy of the petition should be attached to the affidavit.

A guide to filling out the affidavit is provided below.

3. Where the creditor’s petition is based on the execution of a court order against the respondent debtor, the affidavit verifying the petition must state:

• 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
• that the writ or warrant of execution relating to the act of bankruptcy has been returned unsatisfied (in which case a sealed or certified copy of the writ or warrant of execution must be attached to the affidavit).

4. Where the creditor’s petition is based on a failure by the respondent debtor to comply with a bankruptcy notice, the affidavit verifying the petition must state:

• that an application was made for an order setting aside the relevant bankruptcy notice and that the application has been finally decided (in which case the affidavit must also be accompanied by a copy of the order finally deciding the application); or
• that an application was made for an order extending the time to comply with the bankruptcy notice and that the application has been finally decided (in which case the affidavit must also be accompanied by a copy of the order finally deciding the application); or
• that the records of the Federal Court and the Federal Magistrates Court have been searched and that no application in relation to the bankruptcy notice has been made.

You must also provide an affidavit of service of the relevant bankruptcy notice.

5. Pay the application fee. If you cannot afford this fee you can ask the Court to waive it. Some people are also exempt from paying fees (for example, if you have been granted Legal Aid or are the holder of a health care card). You can get a form to ask the Court to waive or grant an exemption from the fee from the Registry or download a copy from the Court’s website.

6. The original creditor’s petition and affidavit (if the affidavit in Part 2 of the Form 6 has not been used) plus two copies of each document for each respondent must be delivered to the Federal Court. You can do this by bringing them to the Registry, 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 Petition and any affidavit for yourself.

7. Filing the petition at the Registry is called "presentation" of the petition. Under the Bankruptcy Act it is important that the Petition is presented within 6 months of an act of bankruptcy (for details of what constitutes an act of bankruptcy see the discussion below).

8. 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 Creditor’s Petition the time date and place when the petition will be first considered by the Court (this is called the return date).

9. You must arrange for a stamped petition and affidavit to be personally served upon each respondent debtor. This should be done at least 5 days before the return date. For information about personal service see Division 10.1 of the Federal Court Rules 2011.

10. You will also need to provide a copy of the petition to the Official Receiver in Bankruptcy for inclusion on the National Personal Insolvency Index (NPII).

11. You must come to Court on the return date. The Court may adjourn the petition, or hear the evidence and make a sequestration order. If you have reached an agreement with the debtor the Court may dismiss the petition and the question of costs will need to be dealt with. If the debtor opposes the petition, directions on the future conduct of the petition may be made.

How to fill in your Creditor’s Petition

Please read all of these notes before you begin completing the Creditor’s Petition.

These instructions assume that you are not represented by a lawyer.

Heading

In the spaces provided, write:

• the name of the registry in which the petition is to be filed;
• your full name as the applicant creditor
• the full name of the respondent debtor.

Notice to respondent

After the word “To:” write the address of the respondent debtor.

Part 1 Petition

Start of the petition

In the spaces provided, write:

• your full name and address
• the full name, address and occupation of the debtor.

Paragraph 1

In the spaces provided, write:

• the amount of the debt
• the reason for the debt
• details of the debt.

For example, the debt may be payable to you under a judgment in the District or County Court for damages or under a Local or Magistrates Court judgment for money that you have loaned to the debtor, or for goods that you have sold and delivered to the debtor.

Paragraph 2

If you do not hold security over the property of the debtor (eg a mortgage or other security) retain the first statement and delete the other parts of paragraph 2.

If you do hold security over the property of the debtor, delete the first statement and complete the other parts of paragraph 2 by writing the value of the property and particulars of the security.

If you are willing to surrender this security for the benefit of any creditors generally, retain paragraph 2(a) and delete paragraph 2(b). If you are not willing to surrender the security, delete paragraph 2(a) and complete paragraph 2(b) by writing the value of the property and the remaining amount of the debt after the value of the property has been deducted from the total debt. Some evidence of the valuation of the property should be included in the affidavit verifying the petition.

Paragraph 3

The Bankruptcy Act states that the debtor must have an Australian connection. The statements in paragraph 3 set out the types of connection recognised under the Bankruptcy Act. Choose the statements in paragraph 3 of the petition that apply to the debtor. Delete those that do not apply.

Paragraph 4

Section 40 of the Bankruptcy Act 1966 sets out several acts of bankruptcy. Paragraph 4 of the petition must clearly state the act of bankruptcy relied upon and the date on which that act occurred. The most common act of bankruptcy is failure to comply with a bankruptcy notice within the time prescribed (generally 21 days). If the debtor has failed to comply with a bankruptcy notice, the following details should be included in paragraph 4:

• the date when the bankruptcy notice was served on the debtor;
• the date on which the debtor failed to comply with the bankruptcy notice — this is usually the twenty first day after service, unless an order has been made by the Court extending the 21 day time for compliance with the notice (in which case the new date generally becomes the date of act of bankruptcy);
• a statement as to whether the debtor has or has not satisfied the Court regarding a counter claim, set-off or cross demand in respect of the debt claimed in the Bankruptcy Notice; and
• brief details of the judgment debt including the nature of the claim, the amount of the judgment debt, the date it was obtained and the court in which the judgment was obtained.

Paragraph 5

Completion of paragraph 5 is optional.

The Insolvency and Trustee Service, Australia ("ITSA") is responsible for maintaining an index containing information on proceedings and administrations under the Bankruptcy Act 1966. This index is called the National Personal Insolvency Index ("NPII"). Information provided by you at paragraph 5 may be used by ITSA for the purposes of maintaining the NPII.

Date and signature

The petition must be signed and dated.

Details of the petitioner

In the space provided write your full name.

Address for service

In the next space provided write the address to which the Court or the debtor can deliver or send letters or documents to you. The address must be in Australia. The address must be a street address and cannot be a Post Office Box. This is called your address for service.

Filing details

Under the horizontal line on the first page of the petition write:

• your name
• your address for service, telephone number and facsimile number (if any).

How to fill in your Affidavit verifying a Creditor’s Petition

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

You may use the affidavit that is Part 2 of the Form 6 of the Federal Court (Bankruptcy) Rules 2005 or prepare an affidavit using a Form 59 of the Federal Court Rules 2011.

If you use the affidavit that is Part 2 of Form 6:

• in the spaces provided in the first paragraph, write:
  • the date on which the affidavit is made;
  • your full name, address and occupation.
  
  
• in paragraph number 1:
  • if you are the applicant creditor - omit the text in the square brackets;
  • if you are not the applicant credtior – omit the words ‘I am the applicant’ and complete the text in the square brackets (the square brackets should also be omitted).
  
  
• in paragraph number 3, omit any inapplicable words.



• at the end of the affidavit, write your signature after taking an oath or making an 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.

If you use the affidavit that is Form 59:

• complete the heading by writing in the spaces provided
• your full name;
• the full name of the respondent.

These should be the same names as those used in the creditor’s petition.

• in the spaces provided under the heading, write:
  • your full name, address, occupation and the date on which the affidavit is sworn or affirmed.


• in the space provided in the first line of the main part of the affidavit, again write your name, address and occupation.
  
  
• in the main part of the affidavit, insert paragraphs numbered 1, 2 and 3 from the affidavit in Part 2 to the Form 6;

• in paragraph number 1:
• if you are the applicant creditor - omit the text in the square brackets;
• if you are not the applicant credtior – omit the words ‘I am the applicant’ and complete the text in the square brackets (the square brackets should also be omitted).

• in paragraph number 2, insert at the end of the sentence the following:

Annexed hereto and marked with the letter ‘A’ is a copy of the petition.

• in paragraph number 3, omit any inapplicable words.

• at the end of the affidavit, write your signature after taking an oath or making an 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.
  

• under the horizontal line on the first page of the affidavit, write:
• your name
• your address for service, telephone number, email address and facsimile number (if any).

• attach a copy of the petition to the affidavit. The following annexure note must appear 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 name of person witnessing affidavit and date including year].

  Signed: ………………………"

The person witnessing the affidavit must sign the annexure note.

(February 2006; revised January 2012)