Guide to Filing a Creditor’s Petition and other bankruptcy matters

What is a creditor’s petition?

This is the intial document which you need to file when you want a sequestration order against someone because they have not responded to a bankruptcy notice. It is a serious matter to be made bankrupt and the courts do not take it lightly to make someone bankrupt. The requirements for the documentation are very particular and a single mistake in the following of the process of the filing of a creditor’s petition can be disasterous for the application and even result in the matter having to be withdrawn and a new appplication be made. For this reason it is essential that you seek legal advice in relation to the filing of a creditor’s petition.

What is the important legislation?

The main legislation which applies to Bankruptcy in Australia is:
1. Bankruptcy Act 1966,(the Act)
2. Federal Magistrates Court (Bankruptcy) Rules 2005 (the Rules)
3. Bankruptcy Regulations 1996 (the Regulations)
4. Federal Magistrates Act 1999
5. Federal Magistrates Court Rules 2001 (the FMC Rules)

What do I need to do before filing a creditor’s petition:

You need to do a search of the National Personal Insolvency Index (NPII) to ensure the debtor has not already become bankrupt. You then attach this to an affidavit of search. If they are already bankrupt, they cannot be made bankrupt again. Also, a creditor’s petition must be file within 6 months of the failure to company with a Bankruptcy Notice (21 days after it was served). You must also pay the fee for filing.

What documents do I need to file?

1. Creditor’s petition.
2. Affidavit verifying paragraphs 1, 2 and 3 of petition by someone who knows the relevant facts verifying the petition.
3. Affidavit verifying paragraph 4 of petition verifying whether or not an application has been made for an order setting aside the bankruptcy notice.
4. Affidavit of service of the bankruptcy notice, with a signed copy of the bankruptcy notice and copy of the judgment attached.

The creditor’s petition should be in Form 6 and be executed by either the applicant or by the applicant’s authorised agent or solicitor.

Debt Collection Letter Resources