Bankruptcy - Search warrant

Section 130 of the Bankruptcy Act lets the trustee of a bankrupt's estate apply to an eligible judge for a warrant if the trustee has reasonable grounds for suspecting that premises hold property of the bankrupt, property connected with the bankrupt's examinable affairs, or relevant books. The judge may authorise a constable, with any other person named, to enter (using reasonable force), search, break open receptacles, take possession of or secure the property, and deliver it to the trustee. The judge must first have an affidavit setting out the grounds, any further information the judge requires, and be satisfied there are reasonable grounds (s 130(3)). In family law cases with bankruptcy jurisdiction, Part 12 of the Division 2 Bankruptcy Rules applies through FLR r 1.22, and rule 12.03 allows the warrant to follow the approved form. This form is the warrant, signed by the judge.

When you need it

• You are the trustee of a bankrupt party's estate in a family law case where the court has bankruptcy jurisdiction (Bankruptcy Act s 35 or 35A).
• You have reasonable grounds to suspect that particular premises hold the bankrupt's property, property connected with their examinable affairs, or relevant books.
• You can put those grounds in an affidavit for the judge.

1. 1

   Court and file details

   Tick the Division and insert the file number and the name of the bankrupt estate.

2. 2

   Part A - the parties

   List the applicants and respondents as named in the proceeding.

3. 3

   Part B, item 2 - who is authorised

   Name the Australian Federal Police member to whom the warrant is addressed, and tick the other classes of officers and any other persons listed in Schedule 1.

4. 4

   Item 3 - the application and premises

   Insert the bankrupt's full name and the address of the premises. The form already describes the kinds of relevant property; check they fit your affidavit.

5. 5

   Item 4 - hours of entry

   The warrant must say whether entry is allowed at any time of the day or night or only between stated hours (s 130(5)(a)). Delete the option that does not apply.

6. 6

   Item 5 and Schedule 1 - expiry and other persons

   Insert the day the warrant ceases to have effect, which must be no later than 7 days after the day it is issued (s 130(5)(b)), and list any other named persons in Schedule 1. The judge dates and signs it.

• Only the trustee can apply (s 130(1)). Lodge the application with the supporting affidavit and the draft warrant in the family law registry managing the case.
• The judge may ask for more information, orally or by affidavit, before deciding (s 130(3)(b)). If the warrant issues, the judge records on the affidavit which grounds were relied on (s 130(4)).
• Property taken under the warrant is delivered to the trustee or a person the trustee authorises in writing (s 130(2)(e)).

• Describe the premises exactly as they appear on the ground, including any garage or storage area, so officers can identify them.
• Plan around the 7-day limit. A warrant that expires before it is executed is of no use.
• Keep the affidavit focused on why the property is likely to be at those premises now.