Arrest warrant under section 78 of the Bankruptcy Act 1966 (Form B16)

Section 78 of the Bankruptcy Act 1966 allows the Court to issue a warrant for the arrest of a debtor or bankrupt, and their committal to gaol until the Court otherwise orders, where it appears that a debtor against whom a bankruptcy notice or petition exists has absconded or is about to, or has concealed or removed property or books, or that a bankrupt has concealed or removed property or failed without good cause to comply with a Court order or obligation. The same warrant may order seizure of property and books. Rule 12.01 of the Federal Court (Bankruptcy) Rules 2016 requires the warrant to be in accordance with Form B16. The form is completed for the Court, usually as a draft supplied with the application, and is signed by a Judge.

When you need it

• You are a creditor or trustee and have evidence that a debtor is about to leave to avoid paying debts or to delay bankruptcy proceedings (s 78(1)(a)).
• A debtor has concealed or removed, or is about to destroy, conceal or remove, property or books (s 78(1)(b), (c)).
• A bankrupt has concealed or removed property without the trustee's permission, or has failed without good cause to comply with a Court order or obligation under the Act (s 78(1)(d), (f)).

1. 1

   Heading

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

2. 2

   The person to be arrested

   Give the person's name, address (or 'address unknown') and date of birth (or 'unknown'). The warrant is addressed to the Sheriff and all constables.

3. 3

   The gaol

   Name the gaol the person is to be taken to. The warrant directs the officer in charge to hold the person until the Court otherwise orders.

4. 4

   Seizure of property and books (if sought)

   Keep the seizure paragraph only if the Court is to order property and books seized, and name the person who is to hold them until the Court orders how they are dealt with (s 78(1), (2)). Otherwise delete it.

5. 5

   Grounds in the notes

   Select and edit the ground or grounds in the Notes that match the section 78(1) paragraph relied on. The Judge dates and signs the warrant.

• Apply for the warrant by filing an application in Form B2 stating the grounds, with an affidavit stating the facts in support (rr 2.01 Note 1, 12.01(1), (2)). Provide a draft Form B16.
• File through eLodgment or at a District Registry.
• If the person is arrested, the person who carried out the arrest must immediately notify a Registrar in the Registry that issued the warrant (r 12.01(4)).
• A filing fee may apply to the application. Check the current fee schedule.

• Put specific, first-hand evidence in the affidavit. The Court must be satisfied that a section 78(1) ground is made out.
• Section 78(1)(a) to (c) apply to a debtor whether or not they have become bankrupt (s 78(3)).
• Constable is defined to include members of the Australian Federal Police and State and Territory police, as the form's notes say.