Personal Bankruptcy (Debtor) - Set Aside Bankruptcy Notice Application

What must the supporting affidavit say?: It must state the grounds and the date the notice was served, with the notice attached. A counter-claim, set-off or cross demand ground needs full details, its amount and the amount by which it exceeds the sum in the notice, and why it was not raised in the proceeding that produced the judgment (Federal Court (Bankruptcy) Rules 2016 r 3.02). The application and affidavit must be served on the creditor within 3 days after filing (r 3.02(5)).

What if a Registrar refuses the application?: In the Federal Circuit and Family Court, Registrars can set aside bankruptcy notices and extend time (Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 Schedule 1, items 1 and 4). Review of a Registrar's decision must be sought within 21 days: by Form B3A in that Court, or by interim application in Form B3 in the Federal Court (r 2.02(3) of each Court's bankruptcy rules).

Jurisdiction: Federal Court of Australia or Federal Circuit and Family Court of Australia (Division 2), which have concurrent jurisdiction in bankruptcy (Bankruptcy Act 1966 s 27). The application starts a new proceeding and is made by Form B2 (r 2.01(1)(a)).

The Process at a Glance: Confirm the date of service and the last day for compliance. Assess the grounds, including any counter-claim, set-off or cross demand, any overstatement of the amount claimed (s 41(5)) and any defect in the notice. Draft the Form B2 application seeking orders setting aside the notice and extending time, with the rule 3.02 affidavit. File before time expires, obtain the extension order where s 41(7) does not apply, and serve the creditor within 3 days. Prepare submissions and attend the hearing, seeking review within 21 days if a Registrar refuses the application.

Key Legislation: Bankruptcy Act 1966 (Cth) ss 27, 40(1)(g), 41(2A), 41(5), 41(6), 41(6A), 41(6C) and 41(7). Federal Court (Bankruptcy) Rules 2016 rr 1.07(5), 2.01, 2.02(3), 2.06, 3.02 and 3.03. Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 rr 2.02(3), 3.02 and 3.03 and Schedule 1.

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