Notice of filing of application to modify or terminate an order for recognition or other relief (Form B23)

Recognition of a foreign proceeding can be modified or terminated if the grounds for it were lacking or have ceased to exist (Model Law art 17(4)), and relief granted under article 19 or 21 can be modified or terminated on the request of the foreign representative or an affected person (art 22(3)). Rule 14.09 of the Federal Court (Bankruptcy) Rules 2016 requires such an application to be made by interim application in Form B3, served on the respondent and the people involved in the original application. Unless the Court orders otherwise, the applicant must also send a notice of the filing in accordance with Form B23 to each person known to claim to be a creditor, and publish it once in a daily newspaper circulating generally in the State or Territory where the debtor has their principal, or last known, place of residence (r 14.06(1)(b)(ii)). The Court may direct publication in other States or Territories as well (r 14.09(5)).

When you need it

• An interim application has been filed to modify or terminate an order recognising a foreign proceeding about an individual debtor.
• An interim application has been filed to modify or terminate provisional relief (article 19) or relief after recognition (article 21).
• Part 14 of the Federal Court (Bankruptcy) Rules 2016 applies where the debtor is an individual (r 14.01). For a company or other debtor that is not an individual, the Court's Corporations Rules forms list has equivalent notices (Forms 20 to 23).

1. 1

   Heading

   Insert the Federal Court file number and year, and the name of the debtor or bankrupt estate, as they appear on the recognition application.

2. 2

   Choose the kind of application

   Keep one of the two paragraphs: an application to modify or terminate an order for recognition, or an application to modify or terminate relief under article 19 or 21. Choose modifying or terminating, and for relief, article 19 or 21.

3. 3

   Application and hearing details

   Insert the name of the debtor or bankrupt estate, the applicant, the date the interim application was filed, who will hear it, and the address of the Court, time and date.

4. 4

   Address for service and notes

   Give the applicant's address for service. Leave the printed paragraph telling anyone who intends to appear to file a notice of appearance (if not already filed) and any affidavit, and serve them on the applicant, at least 3 days before the hearing.

5. 5

   Date and name

   Date the notice and insert the name of the person giving notice or that person's lawyer.

• Send Form B23 to each person whose claim to be a creditor is known to the applicant (r 14.09(4)(a)).
• Publish it once in a daily newspaper circulating generally in the State or Territory where the debtor has their principal, or last known, place of residence (r 14.06(1)(b)(ii)). The Court may direct publication in other States or Territories as well (r 14.09(5)).
• Serve the interim application and any supporting affidavit on the respondent and the persons who were served with, or appeared on, the original application (r 14.09(3)).
• Anyone intending to appear at the hearing must file and serve a notice of appearance under rule 2.04 (r 14.09(6)).

• The notice obligation applies unless the Court orders otherwise (r 14.09(4)), so raise any proposed departure with the Court early.
• In granting, modifying or terminating relief the Court must be satisfied that the interests of creditors and other interested persons, including the debtor, are adequately protected (Model Law art 22(1)).