Application for summons to examine relevant person or examinable person (Form B10)

Section 81 of the Bankruptcy Act 1966 lets the Court or a Registrar, on the application of a creditor with a provable debt, the trustee or the Official Receiver, summon the bankrupt (the relevant person) or an examinable person for examination about the bankrupt and their examinable affairs. The examination is on oath and held in public (s 81(1A), (2)). Rules 6.06 and 6.12 of the Federal Court (Bankruptcy) Rules 2016 require the application to be in accordance with Form B10, accompanied by a draft summons (Form B9) and a supporting affidavit. More than one application can be included in the same Form B10.

When you need it

• You are a creditor, the trustee or the Official Receiver and want the bankrupt examined about their affairs.
• You want to examine an examinable person, such as someone who may hold information or property relating to the bankrupt, and can state the facts showing they are an examinable person (r 6.12(3)(b)).
• You also want the person to produce books relating to the bankrupt or their examinable affairs (s 81(1B)).
• Not for an examination under section 50 before sequestration, which is applied for in Form B2 (r 6.01).

1. 1

   Complete the heading

   Use the bankruptcy proceeding details: District Registry, the bankrupt estate in the 'In the matter of' line and the parties.

2. 2

   Choose Court or Registrar

   Say whether you ask the Court or a Registrar to issue the summons under section 81, in accordance with the accompanying draft summons or summonses.

3. 3

   List each relevant person

   If you want the bankrupt examined, keep that section, say whether they are to give evidence only or also produce documents, and give their name and address. Delete the section if it does not apply.

4. 4

   List each examinable person

   Do the same for each examinable person. Where documents are to be produced, describe them in the 'Details of the documents to be produced' field.

5. 5

   Date and sign

   Sign as the applicant or the applicant's lawyer.

• File Form B10 with a draft summons in Form B9 for each person and an affidavit stating whether you are a creditor, the trustee or the Official Receiver and, if books are to be produced, identifying them and any refused inquiries (rr 6.06, 6.12).
• For an examinable person, the affidavit may be filed in a sealed envelope or, if sent electronically, marked Confidential with the required statement, and then it is not open to public inspection (r 6.12(4) to (6)).
• The application may be heard in the absence of a party or in closed court (rr 6.07, 6.13).
• If the summons issues, serve it personally (or as directed) at least 8 days before the examination, and give each known creditor written notice of the date, time and place (rr 6.09, 6.15).
• Pay an examinable person reasonable conduct money a reasonable time before they attend, and their witness expenses (r 6.17).

• Make enquiries about the books before you apply. The affidavit must give details of any inquiry and any refusal to cooperate (rr 6.06(3)(b), 6.12(3)(c)).
• Before summoning anyone on a creditor's application, the Court or Registrar may impose terms as to costs (s 81(1C)).
• A person who fails to attend may be dealt with under section 264B, which allows an apprehension warrant (Form B17).