Bankruptcy Information Sheet 2

Creditor's Petition Checklist

Bankruptcy Rules for Federal Court and Federal Circuit Court

In the matter of:

Applicant's Lawyer:
Respondent's/ supporting creditor's lawyer:

Key Issues:

File No:
ACT OF BANKRUPTCY (Bankruptcy Act s 40)
checkbox Fail to comply with Bankruptcy Notice Bankruptcy Act s 40(1)(g)
  checkbox Date issued: _____________________
  checkbox Correct form Form 1 (Regs)
  checkbox Debts $5,000 or more Bankruptcy Act s 41(1)
  checkbox Gives an address for payment in Australia Form 1 pg 2 at para 2
  checkbox Final judgment or order not more than 6 years old Bankruptcy Act s 41(3)(c)(i)
  checkbox Attaches copy of sealed or certified final judgment or order (or certificate of judgment or sealed or certified copy of final judgment or order)
Reg 4.01, Form1 pg1 at item 1
  checkbox Interest calculations with reference to relevant legislative basis for interest claim Form 1 Note C
  checkbox Affidavit of service of Bankruptcy Notice
Harmonised Bankruptcy Rules 4.04(1)(b) and Regulation 16.01
    Mode of service: personal/ delivery/ postal/ email/ substituted service
Bankruptcy Reg 16.01
    checkbox Date posted/ emailed/ delivered complying with substituted service order ________________
    checkbox Date served or deemed served: (postal rule) ________________
    checkbox Served within 6 months of issue (or extension of BNotice by AFSA) Bankruptcy Reg 4.02A
    checkbox Attaches copy of relevant bankruptcy notice
checkbox Unsatisfied execution of writ/warrant Bankruptcy Act s 40(1)(d)
  checkbox Affidavit verifying petition attaches sealed or certified copy of the writ or warrant of execution returned unsatisfied. Harmonised Bankruptcy Rules 4.03(2)
  Other act of bankruptcy
checkbox Date of act of bankruptcy: Bankruptcy Act s 40(1)
  checkbox Correct in paragraph 4 of Creditor's Petition
  checkbox Incorrect in paragraph 4 of Creditor's Petition and requires amendment
checkbox CREDITOR'S PETITION (s 43) Harmonised Bankruptcy Rules 4 Part 4
  checkbox Date presented: ________________
  checkbox Presented within 6 months of date of act of bankruptcy Bankruptcy Act s 44(1)(c)
  checkbox in correct form / correct spelling of parties etc
Harmonised Bankruptcy Rules 4.02
BR Form B6
  checkbox Debts $5000 or more (owing at act of bankruptcy) Bankruptcy Act s 44(1)(a)
  checkbox Signed by creditor, solicitor or authorised officer (authority produced) BR Form B6
  checkbox Clear and correct time, date and place of hearing endorsed on petition cover sheet BR Form B6
checkbox AFFIDAVITS VERIFYING THE PETITION
Bankruptcy Act
s 47, Harmonised Bankruptcy Rules 4.02, 4.03, 4.04
  Verification of paragraphs 1,2,3 (and 4) by a person who knows the relevant facts by:
  checkbox Using affidavit in Part 2 of Creditors Petition document
Bankruptcy Act
s 47 BR Form B6 (Part 2) Harmonised Bankruptcy Rules 4.02, 4.03, 4.04,4.02(2)
  OR
  checkbox Separate affidavit verifying paragraphs 1,2,3 by a person who knows the relevant facts and attaches copy, not original, of Creditor's Petition
Harmonised Bankruptcy Rules 4.02(3)(b) 4.02(4)
  Verification of paragraph 4
  checkbox Paragraph 4: (If based on s 40(1)(g) non-compliance with bankruptcy notice) Harmonised Bankruptcy Rules 4.04(1)
Results of search of FCA and FCC records stating:
    checkbox that FCA and FCC records searched and no application filed in respect of bankruptcy notice Harmonised Bankruptcy Rules 4.04(1)(a)(i)
Attaches a copy of the FCA/ FCCA search to the Affidavit Harmonised Bankruptcy Rules 4.04(2)
    OR
    checkbox details of any applications to set aside or extend time for compliance with bankruptcy notice and Harmonised Bankruptcy Rules 4.04(1)(a)(ii) and (iii)
    checkbox Copy of order finally deciding any application on bankruptcy notice Harmonised Bankruptcy Rules 4.04 (3)
checkbox AFFIDAVIT OF SERVICE OF CREDITOR'S PETITION & AFFIDAVITS
  checkbox Date of service: ________________
  checkbox Served at least 5 working days before the first hearing date
Harmonised Bankruptcy Rules 4.05 - FCA r8.06, FCC 3.04
  checkbox Personal service (by hand) of signed and sealed Creditor's Petition as originating process FCA r8.06, 10.01 FCC 6.06. 6.07
    OR
  checkbox Compliance with any substituted service order FCA r 10.24 FCC 6.14
  Service of copy of affidavits verifying petition:
  checkbox Paragraphs 1,2,3 or Part 2 of CP (Form 6) Harmonised Bankruptcy Rules 4.05 (b)
  checkbox Paragraph 4 Harmonised Bankruptcy Rules 4.05(c)
  checkbox Service of copy of affidavit of service of bankruptcy notice
Harmonised Bankruptcy Rules 4.05(d)
  checkbox Service of any Consent to act as Trustee by: ___________________________
Harmonised Bankruptcy Rules 4.05(e
)
  checkbox If affidavit of service filed by fax, original retained by creditor unless directed to be filed
checkbox AFFIDAVIT OF FINAL SEARCH Harmonised Bankruptcy Rules 4.06
  checkbox Search performed no earlier than day before the hearing
Harmonised Bankruptcy Rules 4.06(3)
  checkbox Attaches copy of National Personal Insolvency Index extract(s)
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Harmonised Bankruptcy Rules 4.06(3)(c)
  checkbox States no details of debt agreement on date that Creditor's Petition presented and sets out details of any references in the Index to the debtor
Harmonised Bankruptcy Rules 4.06(3)(b)
  checkbox If affidavit of final search filed by fax, original retained by creditor unless directed to be filed Harmonised Bankruptcy Rules 4.07
checkbox SEARCH AFFIDAVIT (if applicable)
  checkbox If original judgment requires payment of debt into court, search of court and states no amount or part amount paid into court as ordered
Harmonised Bankruptcy Rules 4.06(5)
checkbox AFFIDAVIT OF FINAL DEBT Harmonised Bankruptcy Rules 4.06
  checkbox Debts $5000 or more (for petitions presented on or after 11 August 2010) Bankruptcy Act s 44(1)
  checkbox Sworn as soon as practicable before hearing date by person who knows relevant facts Harmonised Bankruptcy Rules 4.06(4)(a)
  checkbox States debts relied on still owing (and amount of debt)
Harmonised Bankruptcy Rules
4.06(4)(b)
  checkbox If affidavit of final debt filed by fax, original retained by creditor unless directed to be filed
checkbox PERSON INTENDING TO OPPOSE APPLICATION OR PETITION
  checkbox Notice of Appearance Harmonised Bankruptcy Rules 2.05, 2.06(2)(a) BR Form 4
  checkbox Notice of grounds of opposition Harmonised Bankruptcy Rules 2.06(2) BR Form B5
  checkbox Affidavit in support of the grounds of opposition
Harmonised Bankruptcy Rules
2.06(2)(c)
  checkbox Notices and affidavit served at least 3 days before hearing or with the leave of the Court Harmonised Bankruptcy Rules 2.06(2)
checkbox COSTS Fixed costs allowed on hearing of the Sequestration Order plus any Costs reserved on any other application (eg substituted service application) Schedule 3, item 14.1 of the Federal Court Rules
checkbox ADJOURNMENT NOTIFICATION (affidavit of proof of written notification of the adjourned court date).
checkbox ORDER MADE WITHIN 12 MONTHS OF PRESENTATION (or within time as extended) Sequestration order
Bankruptcy Act ss 52(4), 52(5) Harmonised Bankruptcy Rules 4.07 BR Form B7