Part 5 Enforcement of judgments
40 (Repealed)
Division 2 Examination of judgment debtor
41 Summons for examination of judgment debtor
(1) Where a judgment debt has not been satisfied, the judgment creditor may file with the registrar of the court in which the judgment is given or entered up a summons (in this Division referred to as an examination summons) requiring the judgment debtor to be examined at the court for the district specified in the summons, being the district in which the judgment debtor has his or her place of abode, business or employment, as to the matters referred to in subsection (2) (b).(2) An examination summons:(a) shall be made returnable before the registrar of a court, determined by the registrar of the court in which it was filed, for the district specified by the judgment creditor in the summons and at a time on a return date so determined,(b) shall require the judgment debtor to appear at that time before the registrar of the court specified in the summons to be orally examined by the judgment creditor before that registrar or by that registrar as to his or her property and other means of satisfying the judgment debt and generally as to his or her financial circumstances, and(c) may require the judgment debtor to produce to the registrar, at the time and place specified in the summons, any documents or things in the possession or control of the judgment debtor which tend to show the judgment debtor’s true financial circumstances.(3) A person is not bound to produce any document or thing not specified or otherwise sufficiently described in the examination summons or which the person would not be bound to produce on a subpoena for production in the Supreme Court.(4) If a judgment debtor served with an examination summons before or after the substitution of this subsection by the Courts Legislation (Amendment) Act 1993 attends before a registrar as required by the summons:(a) the judgment creditor may, in accordance with the rules, orally examine the judgment debtor before the registrar, or(b) if the judgment creditor has so requested in accordance with the rules, the registrar may, in accordance with the rules, orally examine the judgment debtor,as to the judgment debtor’s property and other means of satisfying the judgment debt and generally as to the judgment debtor’s financial circumstances.(5) (Repealed)(6) Where a judgment creditor has filed an examination summons by reason of the judgment debt not having been satisfied the judgment creditor shall not file another examination summons by reason of that judgment debt not having been satisfied within 3 months after the judgment debtor has appeared for examination in answer to that firstmentioned examination summons or in proceedings under this Division taken against the judgment debtor consequent upon the filing by the judgment creditor of that firstmentioned examination summons.
42 Failure to attend in answer to examination summons
(1) If, at the time set down (whether originally or on an adjournment) for the examination of a judgment debtor before a registrar:(a) the judgment debtor fails to attend before the registrar,(b) the registrar has no information which satisfies the registrar that the judgment debt has been paid, and(c) there is due proof of service of the examination summons on the judgment debtor (or, if the examination has been adjourned, of service on the judgment debtor of notice of the time and place fixed for the examination),the court may act under subsection (2).(2) The court may:(a) authorise the issue of a warrant for the apprehension of the judgment debtor, or(b) adjourn the examination proceedings and order that the judgment debtor attend before the registrar at that court on a date and at a time specified in the order,and the registrar shall forthwith serve on the judgment debtor a notice informing the judgment debtor of any action taken by the court under this subsection.(3) A warrant shall not be issued under this section until after the expiration of 14 days after the registrar served the notice under subsection (2).(4) If before an application is made under this subsection the judgment debtor has not attended, by arrangement with the registrar, to be examined as to the matters referred to in section 41 (2) (b), the registrar, on the application of the judgment creditor verified by the judgment creditor’s affidavit or in such other manner as may be prescribed and made not earlier than 14 days, and not later than 3 months, after the registrar served the notice under subsection (2) in respect of the judgment debtor, may issue the warrant for the apprehension of the judgment debtor.(4A) If a judgment creditor fails to make an application under subsection (4) within the time limited by that subsection, the court, if satisfied with the reasons for the failure, may issue a warrant for the apprehension of the judgment debtor.(4B) The functions of the court under subsections (2) and (4A) may be exercised by the registrar.(5) The warrant shall:(a) be under the hand of the registrar,(b) name or otherwise describe the judgment debtor whose apprehension is required by the warrant,(c) state shortly the reason for its issue,(d) contain an order, addressed to the Sheriff and all bailiffs, requiring the apprehension of the judgment debtor if he or she is within New South Wales and directing that he or she be brought before the registrar of the nearest convenient court to the place at which he or she is apprehended to be examined as to the matters referred to in section 41 (2) (b), and(e) subject to subsection (7), continue in force until:(i) the registrar endorses on the warrant that the warrant is revoked by order of any court or of the registrar of the court at which it was issued,(ii) it is endorsed by the registrar in accordance with subsection (6), or(iii) it expires in accordance with the rules.(6) A registrar who examines a judgment debtor in respect of whom a warrant is in force under this section as to the matters referred to in section 41 (2) (b) shall, as soon as practicable after doing so, endorse on the warrant that the warrant is revoked.(7) A registrar who adjourns the examination under an examination summons of a judgment debtor in respect of whom a warrant is in force under this section shall, as soon as practicable after doing so, endorse on the warrant that the warrant is suspended until the time fixed for the examination of the judgment debtor on the day to which the examination of the judgment debtor has been adjourned, and where the warrant is so endorsed it shall not be in force during the period of its suspension but on the expiration of that period shall, subject to subsection (6), be in force, except as may be otherwise provided by the rules.(8) The Sheriff or any bailiff may execute the warrant and any member of the police force shall, if called upon by the Sheriff or a bailiff to do so, aid and assist in the execution of the warrant.
(1) Unless the registrar of the court in which a judgment is given or entered up has information satisfying the registrar that the judgment debt has been paid, that registrar may, on the application of the judgment creditor, serve on the judgment debtor a notice calling upon the judgment debtor to furnish, within such period, not being less than 14 days, as may be specified in the notice, to the judgment creditor answers to the questions contained in the notice relating to the matters referred to in section 41 (2) (b).(2) Notwithstanding subsection (1), while enforcement of a judgment is stayed, the registrar shall not serve on the judgment debtor a notice referred to in subsection (1) relating to the judgment debt under that judgment.(3) Where:(a) a notice referred to in subsection (1) has been served on a judgment debtor,(b) the judgment debtor has, within the period specified in the notice, furnished to the judgment creditor answers to the questions contained in the notice,(c) the judgment debtor is, within 3 months after the service on the judgment debtor of the notice, examined pursuant to an examination summons before or by a registrar (whether that summons was filed before or after the service of the notice on the judgment debtor or before or after the commencement of this section), and(d) the registrar, on the application of the judgment debtor made at the examination of the judgment debtor, certifies that he or she is satisfied that the judgment debtor answered the questions contained in the notice fairly and truthfully,there shall not be added to the judgment debt any costs in respect of the filing, issuing or serving of that examination summons or of any document filed, issued or served in connection with that examination of the judgment debtor.
44 Examination of judgment debtor
(1) Where a judgment debtor appears before a registrar for examination in accordance with this Division the judgment debtor may be examined on oath as to any of the matters referred to in section 41 (2) (b) by the judgment creditor or, where the judgment creditor has so requested in accordance with section 41 (4) (b) or the judgment debtor is brought before the registrar in accordance with a warrant issued under section 42, by the registrar of the court at which the judgment debtor appears for examination and, if the judgment creditor is present, by the judgment creditor.(2), (3) (Repealed)(4) The registrar before whom a judgment debtor appears for examination under this Division may administer an oath to the judgment debtor for the purposes of that examination.(5) Where a judgment debtor appears for examination in accordance with this Division, a Magistrate may exercise the powers of the registrar under this section.
45 Where judgment debtor corporation
Where a judgment debtor is a body corporate or other body of persons that may by law sue or be sued, whether in its own name or in the name of any officer or other person, an examination summons may be issued under section 41 requiring an officer or former officer of the judgment debtor to appear for examination under this Division as to the property of, and other means of satisfying the judgment debt available to, the judgment debtor and generally as to the financial circumstances of the judgment debtor, and the provisions of this Division shall apply to the person so summoned in the same way as if the person were the judgment debtor.
46 Offences where judgment debtor attends for examination
A judgment debtor who attends for examination under this Division shall not:(a) without reasonable excuse, refuse to give evidence on oath at the examination,(b) give false information at the examination, or(c) without reasonable excuse, fail to produce any documents or things that the judgment debtor is required by an examination summons to produce.Penalty: 10 penalty units.
Division 3 Attachment of debts
(1) The registrar of a court in which a judgment is given or entered up may make an order that all debts due or accruing to the judgment debtor from any person specified in the order shall be attached to answer the judgment debt.(2) A garnishee order shall take effect upon its being served on the garnishee, and upon its being so served:(a) except in a case to which paragraph (b) applies or except in the case of an order to which section 48 applies, shall operate to attach in the hands of the garnishee, to the extent of the amount specified in the order, all debts which are due or accruing from the garnishee to the judgment debtor at the time of service of the order (whether or not they were so due or accruing at the time when the order was made),(b) in the case of an order expressed to be for the attachment of any wage or salary, not being an order to which section 48 applies, shall operate, subject to this Division, to attach, to the extent of the amount specified in the order, the wage or salary next payable by the garnishee to the judgment debtor within 4 weeks after the service of the order on the garnishee.(3) An application for a garnishee order may be made ex parte by, and shall be supported by an affidavit of, the judgment creditor.(4) A garnishee order shall:(a) specify the unpaid amount of the judgment debt owing to the judgment creditor, and(b) require the garnishee to pay, in accordance with this Act and the rules, the debt, wage or salary attached or so much of it as may be sufficient to satisfy that unpaid amount after deducting such amount (if any) as may be notified in writing to the garnishee by the judgment creditor or the registrar as having been paid or credited to the judgment creditor on account of that unpaid amount otherwise than under the order.(5) Where, by reason of the smallness of the judgment debt or of the amount to be recovered or of the debt sought to be attached or for any other reason, the registrar is of the opinion that a garnishee order should not be made, the registrar may refuse to make the order.
47A Affidavit that no debt due or accruing
(1) A garnishee who believes that, at the time of service of the garnishee order, there was no debt due or accruing from the garnishee to the judgment debtor may serve on the judgment creditor an affidavit which is to that effect and contains a summary of the grounds on which that belief is based.(2) A disclosure of any information in an affidavit served pursuant to subsection (1) shall not, if the disclosure was reasonable in the circumstances, subject the garnishee to any action, liability, claim or demand.
47B Time for payment by garnishee
(1) Payment by a garnishee in accordance with a garnishee order not expressed to be for the attachment of any wage or salary shall be made:(a) within the period of 21 days after service of the order on the garnishee, or(b) in the case of any debt attached which is due for payment to the judgment debtor after the expiration of that period—not later than the date on which that debt is due for payment to the judgment debtor.(2) Payment by a garnishee in accordance with a garnishee order expressed to be for the attachment of any wage or salary shall be made within the period of 14 days after the wage or salary is due for payment to the judgment debtor.(3) (Repealed)
47C Notice required for certain attached debts accruing
(1) Where a garnishee order not expressed to be for the attachment of any wage or salary attaches a debt which is due for payment to the judgment debtor after the expiration of the period of 21 days after service of the order on the garnishee, the garnishee shall, before the expiration of that period, serve on the judgment creditor a notice which complies with subsection (2).(2) A notice under subsection (1) in respect of a debt shall specify:(a) the date on which the debt is, or is likely to be, due for payment to the judgment debtor, and(b) if the amount of the debt is less than the unpaid amount of the judgment debt specified in the garnishee order—the amount of the debt.(3) A person shall not make in a notice served pursuant to subsection (1) a statement which, to the person’s knowledge, is false.Maximum penalty: 2 penalty units.
If a garnishee complies with a garnishee order (other than a garnishee order to which section 48 applies) within the time prescribed by section 47B and, where applicable, complies with section 47C (1):(a) the garnishee may retain out of the debt attached for the garnishee’s own use an amount not exceeding that prescribed by the rules, and(b) any amount so retained shall, for the purposes of the debt attached, be deemed to have been paid by the garnishee to the judgment debtor.
47E Reduction of attached debt by court
If, after service of a garnishee order on the garnishee, the garnishee acts with reasonable diligence for the purpose of giving effect to the attachment but nevertheless pays to the judgment debtor the whole or any part of the debt attached or otherwise deals with the debt attached so as to satisfy, as between the garnishee and the judgment debtor, the whole or any part of the debt attached, the court may order that, for the purposes of the garnishee proceedings, the debt attached be reduced to the extent of the payment or satisfaction.
48 Continuous operation of garnishee order
(1) In this section, instalment order means an order made in accordance with the rules providing for a judgment debt to be paid by instalments.(2) This section applies to and in respect of a garnishee order expressed to be for the continuous attachment of the wage or salary of a judgment debtor if the applicant for the garnishee order, in the application, requests that the order be so expressed and the registrar so expresses the order.(3) A garnishee order to which this section applies, upon its being served on the garnishee, shall, subject to this section, thereafter operate to attach, to the extent of the amount specified in the order, any wage or salary payable by the garnishee to the judgment debtor from time to time until the expiration of a period of 4 weeks after the garnishee order is so served.(4) Where an instalment order is in force relating to a judgment debt the subject of a garnishee order to which this section applies and a copy of the instalment order is served on the garnishee, the garnishee order shall thereafter, unless any period specified in the instalment order for which it was to remain in force has expired, operate, to the extent necessary to secure payment of the instalments specified in that instalment order, to attach any wage or salary payable by the garnishee to the judgment debtor from time to time, but shall not so operate to an extent greater than is necessary to satisfy the judgment debt.(5) A garnishee order made under this Act for the attachment of a wage or salary to answer the same judgment debt in respect of which an order to which this section applies is in force shall have no force or effect.
49 Limitation on operation of garnishee orders attaching a wage or salary
(1) In this section:prescribed rate, in relation to a wage or salary, means:
(a) if no part of the wage or salary is otherwise attached under this or any other Act—a rate equal to the weekly compensation payment, or(b) if any part of the wage or salary is otherwise attached under this or any other Act—a rate equal to the weekly compensation payment increased by the amount so attached, calculated on a weekly basis.wage or salary includes earnings that are not payable under a contract of employment, but that are either analogous to or in the nature of wages or salary, and the earnings of a share farmer or share worker.
weekly compensation payment means an amount calculated at a weekly rate that is equivalent to 80 per cent of the maximum single weekly payment of compensation for the time being referred to in section 37 (1) (a) (i) of the Workers Compensation Act 1987 as adjusted under that Act.
(2) A garnishee order for the attachment of the wage or salary of a judgment debtor shall extend only:(a) where the wage or salary is payable for a period of one week, to that part of the wage or salary that is payable at a rate in excess of the prescribed rate, or(b) where the wage or salary is payable for a period greater than one week, to that part of the wage or salary payable for that period that is payable at a rate in excess of the prescribed rate.
50 Payment under certain garnishee orders
(1) Subject to compliance with subsection (2), a garnishee required to make a payment under a garnishee order to which section 48 applies may deduct therefrom for the garnishee’s own use an amount equal to 10 per cent thereof.(2) Where a garnishee makes a deduction in accordance with subsection (1), the garnishee shall forward to the judgment creditor, when making payment to the registrar or the judgment creditor of the balance of the payment due, a statement showing:(a) the amount deducted under the garnishee order from the wage or salary of the judgment debtor,(b) the amount deducted by the garnishee for the garnishee’s own use under subsection (1), and(c) the amount of the payment to the registrar or the judgment creditor, as the case may be.(3) Where a garnishee makes a payment in accordance with a garnishee order to which section 48 applies after making a deduction in accordance with subsection (1), the amount deducted shall for the purposes of the wage or salary attached be deemed to have been paid by the garnishee to the judgment debtor.
51 Limitation of payment under certain concurrent attachment orders
(1) In this section, instalment garnishee order means a garnishee order that operates as provided by section 48 (4) and includes an attachment order, made under an Act other than this Act, that has a like operation.(2) This section shall apply where a wage or salary is attached by more than 1 order, including at least 1 garnishee order, whether or not the other orders were made under this Act, and where, of the orders attaching to the wage or salary, at least 1 is, and 1 is not, an instalment garnishee order.(3) Subject to section 49 and except to the extent that, in the case of an order made under an Act other than this Act, that other Act otherwise provides, where this section applies the amount payable by the garnishee under any of the orders that is not an instalment garnishee order shall not, in respect of any payment of wage or salary attached under such an order, exceed:(a) where only 1 of the orders is an instalment garnishee order, the amount payable by the garnishee under that instalment garnishee order in respect of any payment of wage or salary, or(b) where more than 1 of the orders is an instalment garnishee order, the greater, or greatest, of the amounts payable by the garnishee under the instalment garnishee orders in respect of any payment of wage or salary.
52 Procedure where garnishee order not complied with
(1) Where a judgment creditor is satisfied that a garnishee order relating to the judgment debt has not been complied with by the garnishee on whom it was served, the judgment creditor may file with the registrar a summons requiring the garnishee to show cause at the court for the district specified in the summons, being the district in which the garnishee has his or her place of abode, business or employment, why the garnishee should not comply with the garnishee order.(2) A summons filed under subsection (1) shall be made returnable at a court, determined by the registrar of the court in which it was filed, for the district specified by the judgment creditor in the summons and at a time and on a return date so determined.(3) If at the time set down (whether originally or on an adjournment) for the garnishee’s appearance to answer the summons, the garnishee:(a) fails to appear at the court determined by the registrar, or(b) appears at that court but does not satisfy the court that the debt alleged by the judgment creditor to be owing by the garnishee to the judgment debtor is bona fide in dispute,the court may:(c) order execution to issue and it may be sued out accordingly without any other writ or process to levy the amount alleged to be due from the garnishee to the judgment debtor or the unpaid amount of the judgment debt, whichever is the lesser, in payment of or towards satisfaction of the judgment debt, or(d) adjourn the matter and order that the garnishee appear before the court to show cause at such time as may be specified in the order why the garnishee should not comply with the garnishee order,but shall not make an order under paragraph (c) except upon due proof of service of the summons on the garnishee or, where the matter has been adjourned, of the garnishee having been served with notice of the time and place fixed for the garnishee’s appearance.(4) Where a garnishee appears to show cause as mentioned in subsection (3) and satisfies the court that the debt alleged by the judgment creditor to be owing by the garnishee to the judgment debtor is bona fide in dispute, the court shall:(a) where it is satisfied that it would not have jurisdiction under this Act in an action relating to the debt—by its order, discharge the garnishee order which shall thereupon cease to have any force or effect, or(b) in any other case—order that the question as to whether the garnishee is liable to pay the debt or any part of the debt to the judgment debtor be set down for hearing in the court at a time and on a date specified in the order.(5) Where the court makes an order under subsection (4) (b), the judgment creditor shall be deemed to have commenced an action, at the court and at the time on the date specified in the order, against the garnishee for the recovery of the amount of the debt alleged to be owing by the garnishee to the judgment debtor or the unpaid amount of the judgment debt, whichever is the lesser, and, upon the judgment creditor proving the debt, judgment against the garnishee shall be given in favour of the judgment creditor for that amount.(6) The court may, in an order under subsection (4) (a) or in a judgment under subsection (5), order the payment of such amount as may be specified in the order or judgment by one party to the other:(a) for or towards the reasonable professional costs incurred by that other party in connection with proceedings under this section,(b) for or towards the reasonable expenses incurred by that other party in connection with the garnishee order, and(c) for or towards witnesses’ expenses incurred by that other party.(7) Costs or expenses allowed as referred to in subsection (6):(a) in the case of an order under subsection (4) (a)—are a judgment against the party liable to pay the costs or expenses, or(b) in the case of a judgment under subsection (5)—form part of the judgment,and are enforceable accordingly.
52A Bank, building society and credit union accounts
(1) In this section, except in so far as the context or subject-matter otherwise indicates or requires:account includes:
(a) a deposit account or withdrawable share account, and(b) any record of deposit or of subscription for withdrawable shares,but does not include an account or a record which is prescribed by the rules as exempt from the operation of this section.bank means:
(a) a bank within the meaning of the Banking Act 1959 of the Commonwealth, as amended and in force for the time being, or(b) a person who carries on State banking within the meaning of section 51 (xiii) of the Constitution of the Commonwealth.building society means a building society registered under the Financial Institutions (NSW) Code or a co-operative housing society registered under the Co-operative Housing and Starr-Bowkett Societies Act 1998.
credit union means a credit union registered under the Financial Institutions (NSW) Code.
deposit-taking institution means a bank, building society or credit union.
(2) For the purpose of determining whether an amount standing to the credit of a judgment debtor in an account in a deposit-taking institution is attachable as a debt due or accruing to the judgment debtor, the following conditions shall be disregarded:(a) a condition that a demand must be made before any money or share is withdrawn,(b) a condition relating to the manner in which or the place at which any such demand is to be made,(c) a condition that a passbook, receipt or other document must be produced before any money or share is withdrawn,(d) a condition that notice is required before any money or share is withdrawn,(e) except in the case of an account in a Starr-Bowkett society, a condition that any money or share must not be withdrawn for any specified period,(f) a condition prescribing a minimum amount in respect of any withdrawal from the account,(g) a condition that a minimum balance must be maintained in the account,(h) a condition relating to the account prescribed by the rules for the purposes of this subsection.(3) So much of the amount standing to the credit of a judgment debtor in a withdrawable share account in a building society or credit union as is the minimum amount that must be maintained in the account in order that the judgment debtor retains membership of the building society or credit union is not attachable.(4) Where an amount standing to the credit of a judgment debtor in an account in a deposit-taking institution is attached, the garnishee order shall be deemed to operate as a notice of withdrawal or demand for payment under the contract between the garnishee and judgment debtor in respect of the account, and that notice or demand is, while the order remains in force, irrevocable and shall be deemed to have been received by the garnishee:(a) on the date of service of the order, or(b) where the judgment debtor is not entitled under the contract to give a notice of withdrawal or make a demand for payment on the date of service of the order—on the date on which the judgment debtor would, but for the order, have become so entitled.(5) Any charge on an amount standing to the credit of a judgment debtor in an account in a building society or credit union (being a charge created by an Act under which the building society or credit union is registered or regulated or by the rules of the building society or credit union) shall be disregarded for the purposes of a garnishee order, but nothing in the foregoing affects the rights of the building society or credit union to set off or appropriate the whole or any part of that amount.(6) Where:(a) before the expiration of the period of 21 days after service of a garnishee order on a deposit-taking institution with respect to an amount standing to the credit of a judgment debtor in an account, the garnishee pays to the registrar the debt attached to the extent of the attachment, and(b) one of the conditions applicable to the account is that a passbook must be produced before any money or share is withdrawn,the garnishee may, at the time of payment of that amount to the registrar, by instrument in writing signed by an officer of the deposit-taking institution, require the registrar to retain the amount so paid for any specified period not exceeding 2 months commencing on the date of that payment.(7) Where:(a) a registrar is required under subsection (6) by a garnishee to retain an amount for a period specified under that subsection, and(b) the garnishee during that period makes an application for an order under this subsection on the ground that the garnishee has acted with reasonable diligence in relation to the garnishee order but nevertheless, because of the production of a current passbook relating to that amount or any part of that amount, has (whether during or before that period) paid to the judgment debtor the whole or any part of the debt attached or otherwise dealt with the debt attached so as to satisfy, as between the garnishee and the judgment debtor, the whole or any part of the debt attached,the court may, if it thinks fit, order the registrar to repay that amount or any part of that amount to the garnishee.(8) Where a registrar is required under subsection (6) by a garnishee to retain an amount for a period specified under that subsection, the registrar shall not pay that amount or any part of that amount to the judgment creditor:(a) until after:(i) the garnishee, by instrument in writing signed by an officer of the deposit-taking institution, informs the registrar, or the registrar is otherwise satisfied, that a current passbook relating to that amount or any part of that amount has, during that period, come into the possession of the garnishee at the place of keeping of the account to the credit of which that amount was standing, or(ii) the expiration of that period,whichever first occurs, and(b) unless the registrar is satisfied, on such information as is available to the registrar, that no application made during that period by the garnishee for an order under subsection (7) in relation to that amount or any part of that amount is still pending.(9) If an amount referred to in subsection (8) or any part of such an amount is ordered to be repaid to the garnishee under subsection (7), the balance (if any) only is payable to the judgment creditor.
Subject to section 55 (2), payment made by or execution levied upon a garnishee shall satisfy the judgment debt, and be a valid discharge to the garnishee as against the judgment debtor, to the extent of the amount paid or levied, notwithstanding that the garnishee order or the judgment for the judgment debt may be set aside or the judgment reversed.
55 Payments by garnishee to judgment creditor
(1) A payment under a garnishee order shall be made to the registrar, for payment (subject to subsection (2)) to the judgment creditor, or, if the garnishee before making the payment serves on the judgment debtor notice that the garnishee proposes so to do, may be made to the judgment creditor.(2) Where any amount is ordered to be repaid to a garnishee under section 52A (7):(a) the payment of that amount by the garnishee does not satisfy, and shall be deemed never to have satisfied, the judgment debt, and(b) this Division applies to and in respect of the judgment debt as if the garnishee had never made that payment.
56 Judgment creditor to account for any excess paid by a garnishee
(1) Where a judgment creditor receives an amount paid under a garnishee order in excess of the amount required to satisfy the judgment debt the judgment creditor shall forthwith serve on the garnishee and the judgment debtor notice of that fact and on demand made by the judgment debtor pay the excess to the judgment debtor.Maximum penalty: 1 penalty unit.
(2) Where an amount in excess of the amount required to satisfy the judgment debt is paid by a garnishee under a garnishee order, the excess shall be recoverable by the garnishee or the judgment debtor from the judgment creditor in any court of competent jurisdiction.
57 Registrar may pay amounts received from garnishee to judgment creditor
Subject to section 52A, any amounts received by the registrar from the garnishee under a garnishee order may be paid by the registrar to the judgment creditor without further order.
(1) The registrar of a court in which a judgment is given or entered up may, on the application of the judgment creditor, issue a writ of execution in the nature of a writ of fieri facias, which writ of execution shall be directed to the Sheriff and all bailiffs appointed for the purposes of this Act, who, subject to section 9, are hereby empowered to execute the writ in any part of New South Wales in the same manner in all respects, subject to the provisions of this Act, as a process of a similar nature issuing out of the Supreme Court may be executed by the sheriff or a deputy sheriff of that court.(2) A writ of execution issued under this section shall be in force for the prescribed period.
59 Sheriff or bailiff to take under writ of execution
(1) The Sheriff or a bailiff of any court may seize and take under any writ of execution whereby he or she is directed to levy any sum of money, and may cause to be sold:(a) all the goods, chattels and other personal property, other than chattels real, of or to which the person named in the writ as judgment debtor is or may be possessed or entitled, or which the person can, either at law or in equity, assign or dispose of, except:(i) any wearing apparel and any bedroom or kitchen furniture, and(ii) any ordinary tools of trade, plant and equipment, professional instruments and reference books, not exceeding in the aggregate $2,000 in value,being used as such by the judgment debtor or any member of his or her family, and(b) subject to this Division, all the land of or to which the person named in the writ as judgment debtor is seized or entitled, or which the person can, either at law or in equity, assign or dispose of.(2) The Sheriff or a bailiff shall, before selling any property, diligently ascertain whether it would be best, with the view of obtaining the highest prices for the property, to cause the sale to be at the place of levy or elsewhere, and shall sell at the place where, in his or her judgment, those prices are most likely to be obtained.(2A) If, in the opinion of the Sheriff or a bailiff of any court, the cost of seizing, removing, storing and selling property to be seized or taken under a writ of execution is likely to exceed the total sale price of that property, the Sheriff or bailiff concerned may decline to execute that writ.(3) A judgment debtor against whom a writ of execution has issued may inform the Sheriff or bailiff that his or her property available for execution is more than sufficient to satisfy the execution and point out to the Sheriff or bailiff what part or parts of the property he or she will have first sold, and that part or those parts shall be sold accordingly but, if that part or those parts is or are not sufficient to satisfy the execution, the Sheriff or the bailiff shall proceed to sell the whole of the property or such other parts thereof as are sufficient to satisfy the execution.(4) All property taken under a writ of execution shall be put up for sale as soon as possible with due regard to the interests of all parties but, if the Sheriff or bailiff cannot effect an early sale of any property without a sacrifice of its reasonable value, he or she may delay the sale.(5) Where any property is to be sold pursuant to any such writ, the Sheriff or bailiff shall cause notice of the writ, of the intended day and place of the sale and of particulars of the property, to be published in such manner as may be prescribed.(6) The Sheriff or a bailiff may serve:(a) on a judgment debtor against whom a writ of execution has issued, or(b) on any person who has the custody of any personal property of such a judgment debtor,a notice in writing informing the person so served that that person is responsible for the safekeeping of such of the personal property of the judgment debtor in his or her custody as has been seized under the writ of execution.(7) A person (whether or not the person is the judgment debtor), knowing that any personal property has been seized under subsection (1) or is the subject of a notice under subsection (6), shall not, except with the consent in writing of the Sheriff or bailiff by whom the property was seized or by whom such a notice was served, interfere with or dispose of any such property or remove any such property from the place at which it was seized or at which it was situated when the notice was served.Maximum penalty: 50 penalty units.
(8) Nothing in this section affects the provisions of the Judgment Creditors’ Remedies Act 1901.
59A Auctioning of seized property
(1) The rules may make provision for or with respect to:(a) the appointment of a licensee within the meaning of the Property, Stock and Business Agents Act 2002 who is accredited to act as an auctioneer under section 21 of that Act to sell any property under a writ of execution, and(b) the respective functions of the auctioneer and the Sheriff or bailiff.(2) Without limiting the generality of this section, the rules may authorise or require the auctioneer to exercise any function of the Sheriff or bailiff in connection with the sale of the property.
No real or leasehold property shall be liable to be levied upon under a writ of execution except as provided by section 62A.
62A Special provisions relating to execution against land
(1) This section does not apply to a writ of execution unless the amount required to satisfy it is at least $3,000 or such other amount as may be prescribed.(2) Subject to section 105 of the Real Property Act 1900 and section 188 of the Conveyancing Act 1919, a writ of execution, when delivered to the Sheriff or bailiff required to execute it, binds land in the same manner as a writ of execution against property binds goods and chattels.(3) Land is not to be sold under a writ of execution before all the property referred to in section 59 (1) (a) that may be sold under the writ has been sold unless:(a) the judgment debtor requests that the land be sold before all or any of that property is sold, or(b) the Sheriff or bailiff is satisfied that the sale of the land before the sale of all or any of that property would minimise hardship to the judgment debtor or any other person.(4) The Sheriff or bailiff must not cause land to be sold under a writ of execution except on compliance by the judgment creditor and the Sheriff or bailiff with the prescribed procedures, but a purchaser of the land, and the Registrar-General, need not be concerned to inquire whether this subsection has been complied with.(5) The publication under section 59 (5) of notice of the intended sale under a writ of execution of any land is to be considered to be a seizure by the Sheriff or bailiff of the land under the writ, and no actual seizure of the land is necessary in order to authorise its sale under the writ.(6) If land that is not under the provisions of the Real Property Act 1900 is sold under a writ of execution, the registrar of the court that is nearest to the place of sale is to execute a proper assurance in favour of the purchaser.
62B Sale or mortgage by judgment debtor of land affected by writ
(1) In this section:issuing registrar, in relation to a writ of execution, means the registrar of the court at which the writ of execution was issued.
notice of consent means the notice referred to in subsection (2) (a).
(2) If land is affected by a writ of execution particulars of which have been recorded in accordance with section 105 of the Real Property Act 1900, or which has been registered in the register of causes, writs and orders affecting land in accordance with section 186 of the Conveyancing Act 1919 and:(a) the judgment creditor consents, by notice in writing, to the sale or mortgage of the land by the judgment debtor, and(b) the judgment creditor stipulates, in the notice of consent, the minimum amount that should be paid to the issuing registrar out of the proceeds of the sale or the money advanced in respect of the mortgage, and(c) the notice of consent is filed with the issuing registrar, and(d) the issuing registrar, after due inquiry, endorses the notice of consent with a certificate to the effect that the land has not been sold under the writ,the endorsement of the notice with that certificate operates to prohibit the sale of the land under the writ during the prescribed period.(3) If during that prescribed period:(a) the judgment debtor sells or mortgages the land, and(b) in the case of a sale, the amount of the deposit (if any) is paid to the issuing registrar, to be held by the registrar as stakeholder, and(c) an amount (including any deposit paid to the issuing registrar as referred to in paragraph (b)) that is not less than:any liability of the purchaser or mortgagee for payment to the judgment debtor of those proceeds or that money is extinguished to the extent of the amount so paid to the issuing registrar, and the issuing registrar must, upon production to him or her of the instrument evidencing the sale or mortgage, and if he or she is satisfied as to the matters referred to in paragraphs (a), (b) and (c), endorse the instrument with his or her consent to the sale or mortgage.(i) the minimum amount referred to in subsection (2) (b), or(ii) if the judgment creditor notifies the issuing registrar in writing that he or she consents to payment of a specified amount that is less than that minimum amount—that specified amount,is paid to the issuing registrar out of the proceeds of the sale or money advanced in respect of the mortgage,(4) The interest of the purchaser or mortgagee evidenced by the instrument endorsed with the issuing registrar’s consent is not, in relation to the land, affected by anything done or purporting to have been done, whether before or after the endorsement of the consent, under the writ of execution.(5) The amount paid to the issuing registrar, as referred to in subsection (3) (c), is, subject to and in accordance with the rules:(a) to be paid to or at the direction of the judgment creditor, and(b) to be in reduction of the judgment debt.
Division 5 Setting off of judgments
63 Enforcement where judgment given on action and cross-claim
Where a cross-claim is brought in relation to an action and judgment for the payment of an amount is given on the action and on the cross-claim:(a) the party in whose favour judgment is given for the lesser amount shall not be entitled to enforce that judgment, and(b) the party in whose favour judgment is given for the larger amount shall be entitled to enforce the judgment only for so much of that amount as exceeds the lesser amount.
(1) Where:(a) judgment in an action has been given or entered up in a court (in this section referred to as the first court), and(b) the judgment debtor under that judgment has had a judgment given or entered up in his or her favour in another action against his or her judgment creditor in the same or another court (in this section referred to as the second court),that judgment debtor may apply to the first court for an order that the judgment against the judgment debtor be set off against the judgment in the judgment debtor’s favour.(2) Where any such order has been made and:(a) the amount of the judgment in the first court is less than or equal to the amount of the judgment in the second court, the judgment in the first court shall be deemed to be satisfied, and the amount of the judgment in the second court shall be reduced by the amount of the judgment in the first court, or(b) the amount of the judgment in the first court is greater than the amount of the judgment in the second court, the amount of the judgment in the first court shall be reduced by the amount of the judgment in the second court, and the judgment in the second court shall be deemed to be satisfied.
(1) Without the leave of the court:(a) an application may not be made by a judgment creditor under section 43A (1), 47 (3) or 58 (1), and(b) a summons may not be filed by a judgment creditor under section 41 (1),if a period of 12 years has elapsed since the judgment was given or entered up.(2) The court may not grant leave under subsection (1) in respect of a judgment unless a certified copy of the judgment is produced to the court by the applicant for leave.