Summons for examination (Form B9)

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 a bankrupt or an examinable person for examination about the bankrupt and their examinable affairs. Section 50 allows a similar examination of a debtor before bankruptcy where control of the debtor's property has been directed. Under the Federal Court (Bankruptcy) Rules 2016, a summons under either section must be in Form B9 (rr 6.03, 6.08, 6.14). The Registrar signs and seals it and gives it to the applicant to serve. Examinations under s 81 are held in public (s 81(2)).

When you need it

• A trustee, creditor or the Official Receiver wants to examine a bankrupt about their property and dealings (s 81).
• You want to examine an examinable person, such as someone who dealt with the bankrupt's property (s 81).
• The Court has directed a trustee to take control of a debtor's property and the debtor or an examinable person is to be examined (s 50).

1. 1

   Complete the heading

   Insert the District Registry and 'In the matter of' the debtor or bankrupt estate, with the applicant and respondent names. The Division is 'General'.

2. 2

   Name the person summoned

   Insert the name and address of the person to be examined.

3. 3

   Choose the examiner and section

   Delete the options that do not apply: the Court, a Registrar or a magistrate; and section 50 or 81. Insert the name of the bankrupt or debtor.

4. 4

   List the books to be produced

   If books must be produced, list them specifically (rr 6.03(3), 6.08(3), 6.14(3)). The supporting affidavit must identify them and any inquiry about them.

5. 5

   State the applicant's capacity and address

   Insert the applicant's name, capacity under s 81(1) (for example creditor or trustee) and address for service. Keep the expenses sentence only where the summons is addressed to someone other than the bankrupt.

• For s 81, apply in Form B10 with a draft summons and an affidavit (rr 6.06, 6.12). For s 50, apply in Form B2 with an affidavit (r 6.01). A confidential affidavit for an examinable person may be filed in a sealed envelope or marked 'Confidential' (r 6.12(4) to (6)).
• When accepted, the Court attaches a Notice of Filing and Hearing as a coversheet showing the time, date and place of the examination.
• At least 8 days before the examination, serve the summons personally (or as the Court or a Registrar directs) and give written notice of the examination to each creditor you know of (rr 6.04, 6.09, 6.15).

• A person summoned may apply to discharge the summons by interim application (Form B3) and affidavit filed at least 3 days before the examination, served on the applicant and the Official Receiver (rr 6.05, 6.11, 6.16).
• The person examined may be represented by a lawyer, and creditors, the trustee and the Official Receiver may take part (s 81(7), (8)).
• The summons warns that failing to attend may lead to a warrant for apprehension under s 264B of the Bankruptcy Act.