Creditor's petition (Form B6)

Section 43 of the Bankruptcy Act 1966 lets the Court make a sequestration order on a petition presented by a creditor where the debtor has committed an act of bankruptcy and had the required connection with Australia. Rule 4.02 of the Federal Court (Bankruptcy) Rules 2016 requires the petition to be in accordance with Form B6, and section 47(1) requires it to be verified by an affidavit of a person who knows the relevant facts. That verifying affidavit can be included in the form itself or filed separately. Section 44 sets the conditions: a debt or debts totalling at least the statutory minimum, a liquidated sum payable now or at a certain future time, and an act of bankruptcy committed within 6 months before the petition is presented.

When you need it

• The debtor has failed to comply with a bankruptcy notice served on them, or has committed another act of bankruptcy under section 40 of the Bankruptcy Act, within the last 6 months (s 44(1)(c)).
• The debtor owes you (alone or together with other petitioning creditors) at least the statutory minimum (s 44(1)(a)).
• You want a sequestration order against the debtor's estate. For the estate of someone who has died, use Form B14 instead.

1. 1

   Heading and parties

   Fill in the District Registry, the debtor's name in the 'In the matter of' line, the applicant creditor and the respondent debtor, with the debtor's address.

2. 2

   The debt

   Give the creditor's name and address, the debtor's name, address and occupation, and the amount owed and what it is for, including details of any judgment debt.

3. 3

   Security

   Say either that you hold no security over the debtor's property, or give particulars and value of the security and say whether you will surrender it for the benefit of creditors generally or rely only on the unsecured balance (s 44(2) to (4)).

4. 4

   Connection with Australia and the act of bankruptcy

   Tick each connection that applied when the act of bankruptcy was committed (present, ordinarily resident, dwelling or business, carrying on business, or a member of a firm). Then describe the act of bankruptcy. For a failure to comply with a bankruptcy notice, give the date of service and the date of the failure.

5. 5

   Optional details for AFSA

   Give any known alias, date of birth, business name and business address of the debtor, or write unknown or inapplicable.

6. 6

   Sign, give an address for service and swear the affidavit

   Date and sign as the applicant or its lawyer and give an address for service. The deponent (the applicant, a director, or an authorised officer with access to the records) swears or affirms the verifying affidavit before an authorised witness.

• File the petition with the verifying affidavit. For a petition founded on a failure to comply with a bankruptcy notice, also file an affidavit of service of the notice and an affidavit stating either that a search of the Court and Federal Circuit and Family Court records found no application about the notice, or that any such application has been finally decided (r 4.04). File through eLodgment or at a District Registry.
• The form's notes say you must give a copy of the petition to the Official Receiver within 2 working days after presentation.
• Unless the Court orders otherwise, serve the petition, the verifying affidavit, any rule 4.04 affidavits and any trustee's consent to act on the debtor at least 5 days before the hearing (r 4.05).
• Before the hearing, file an affidavit of service, an affidavit of a search of the National Personal Insolvency Index made no earlier than the day before the hearing, and an affidavit sworn as close as practicable to the hearing that the debt is still owing (r 4.06).
• If a sequestration order is made, give a copy to the Official Receiver within 2 days (s 52(1A)). A petition lapses after 12 months unless the Court extends it (s 52(4), (5)). A filing fee applies; check the current fee schedule.

• Count the 6 months carefully. The act of bankruptcy must have been committed within 6 months before the petition is presented (s 44(1)(c)).
• A petition cannot be withdrawn after presentation without the Court's leave (s 47(2)).
• The debtor can oppose by filing Forms B4 and B5 and an affidavit at least 3 days before the hearing (r 2.06), so be ready to prove each matter in section 52(1).