In this Part:deposited funds means money that has been deposited in a bank in accordance with rule 41.2.
funds in court means money that has been paid into court.
Within one day after money is paid into court, the registrar must deposit the money in the court’s bank account.
41.3 Withdrawal of deposited funds
(cf SCR Part 50, rules 2 and 3)
(1) Deposited funds may not be withdrawn or paid except by the authority of these rules or of a judgment or order.(2), (3) (Repealed)
41.4 Registrar to keep accounts
(cf SCR Part 50, rule 4)
The registrar must, in relation to any deposited funds, keep an account of the deposit and of all withdrawals (including withdrawals of interest).
(cf SCR Part 50, rule 5)
The court may direct that any deposited funds be invested in any manner in which a trustee is authorised to invest trust money under the Trustee Act 1925.
41.6 Interest not payable on certain funds in court
(cf SCR Part 50, rule 5A)
(1) Money that is paid into court as security for costs or as security on an appeal, or in relation to an offer of compromise under the Commercial Arbitration Act 1984, does not bear interest.(2) Subrule (1) does not apply to interest accruing on money paid to the NSW Trustee and Guardian.
41.7 Payment to the NSW Trustee and Guardian
(cf SCR Part 50, rule 6A)
(1) The registrar may, and if the court so directs, must:(a) pay funds in court to the NSW Trustee and Guardian for payment into the NSW Trustee and Guardian’s common fund, or(b) demand repayment by the NSW Trustee and Guardian to the registrar of money so paid.(2) When making a payment referred to in subrule (1) (a), the registrar must give particulars of the payment.(3) When making a repayment referred to in subrule (1) (b), the NSW Trustee and Guardian must give particulars of the repayment and any interest.
41.8 Interest on funds in court to abide the decision in proceedings
(cf SCR Part 50, rule 6)
(1) This rule applies if money is paid into court pursuant to an order to abide the decision in the proceedings, and is either invested or paid to the NSW Trustee and Guardian.(2) The court may, on application by a party or by its own motion, order the payment of interest to any party.(3) Despite subrule (2), if:(a) the court makes an order that the whole of the money be paid to one or more parties, and(b) the order does not expressly provide for the payment (or non-payment) of any interest accruing on the money,any interest accruing on the money is to be paid to the party or parties.(4) Unless the court orders otherwise, the interest paid to a party under subrule (3) is to bear the same proportion to the total interest accruing on the total amount of money paid into court as the money paid to the party bears to the total amount of money paid into court.(5) In this rule, interest accruing on money means interest accruing on the money as a result of its investment under rule 41.5 or payment to the NSW Trustee and Guardian under rule 41.7.
41.9 Non-attendance of parties following notice by court
(cf SCR Part 50, rule 6AA)
If the court gives notice to parties of its intention to order the payment to a party of funds in court, or of any interest accruing on those funds, and the party fails to attend court as directed in the notice, the court:(a) may order the payment of the funds or any interest accruing on those funds (or both) to one or more of the parties, in such proportions as the court thinks fit, or(b) may direct the registrar to pay the funds or any interest accruing on the funds (or both) to the Treasurer for payment into the Consolidated Fund, or(c) may decide not to make any such order.
(cf SCR Part 50, rule 6B)
(1) In this rule, unclaimed funds means funds that have been paid into court in relation to any matter, including any interest accruing on those funds, other than funds or interest that have been paid to the Treasurer pursuant to a direction under rule 41.9 (b), where:(a) judgment has been entered on the matter, and(b) the whole or any part of the funds or interest remains unclaimed after 6 years from either of the following:(i) the making of an order for the payment of the whole of the funds or interest (or any part that is unclaimed),(ii) if no such order is made, the date of the judgment.(2) Any matter in respect of which there are unclaimed funds must be referred to the court by the registrar for a direction under subrule (3).(3) The court may direct the registrar to pay the unclaimed funds to the Treasurer for payment into the Consolidated Fund.(4) On the application of a person entitled to unclaimed funds paid to the Treasurer under subrule (3), the court may direct the Treasurer to pay the funds into court for payment to the person so entitled.(5) If satisfied that a person’s failure to make such an application was due to the fact that:(a) the person was then a person under legal incapacity, or(b) the unclaimed funds could not be dealt with until the happening of an event subsequent to the direction referred to in subrule (3),the court may also order the Treasurer to pay into court, for payment to the person, an amount equivalent to the interest (if any) that would have been payable had the unclaimed funds paid to the Treasurer been deposited funds during the period between the date of their payment to the Treasurer under subrule (3) and the date of their repayment by the Treasurer under subrule (4).
(cf SCR Part 50, rule 7)
Subject to these rules, funds in court may not be paid out of court except to the party entitled or (on the party’s written authority or by order of the court) to the party’s solicitor.
(cf SCR Part 50, rule 9)
(1) If:(a) by any judgment or order, the court directs payment of funds in court to any person, and(b) it appears to the registrar:then, unless the judgment or order otherwise directs, the registrar may pay the money to the deceased person’s executor or administrator.(i) that the person has died since the date on which the judgment or order took effect, and that probate of the person’s will or letters of administration of the person’s estate have been granted to an executor or administrator, or(ii) that the person had died on or before the date on which the judgment or order took effect, and that his or her entitlement to payment arose under a direction for payment to creditors, shareholders or debenture holders,(2) Subject to subrule (3), this rule does not authorise payment of the funds to a deceased person’s executor or administrator if the deceased person appears to the registrar to have been entitled as trustee, executor or administrator, or otherwise not in his or her own right and for his or her own use.(3) The registrar may, under this rule, pay the money to an executor of the will of the person to whom payment is directed if it appears to the registrar that the person was entitled as sole or sole surviving executor.
(cf SCR Part 50, rule 10)
If, by any judgment or order, the court directs payment of funds in court to any persons described in the judgment or order, or in a certificate of an associate Judge of the Supreme Court, as partners, or as trading or carrying on business in the name of a firm, then, unless the judgment or order otherwise directs, the registrar may pay the funds to any one or more of those persons or to their survivors.
41.14 Payment to executors or administrators
(cf SCR Part 50, rule 11)
(1) If:(a) by any judgment or order, the court directs the payment of funds in court to any persons described in the judgment or order, or in a certificate of an associate Judge of the Supreme Court, as executors or administrators, and(b) it appears to the registrar:then, unless the judgment or order otherwise directs, the registrar may pay the funds to their survivors.(i) that one or more of them has died since the date on which the judgment or order took effect, or(ii) that one or more of them had died on or before the date on which the judgment or order took effect, but is described in the judgment, order or certificate as an executor of the will or administrator of the estate of a creditor, shareholder or debenture holder,(2) If:(a) by any judgment or order, the court directs the payment of funds in court to any persons described in the judgment or order, or in a certificate of an associate Judge of the Supreme Court, as executors or administrators, and(b) the funds in court total less than $200,then, unless the judgment or order otherwise directs, the registrar may pay the funds to any of them.
(cf SCR Part 50, rule 8)
(1) Any person entitled to payment of funds in court may request the registrar to send the person a cheque for the payment to a specified address.(2) Payment, by the bank on which it is drawn, of a cheque sent in accordance with such a request is taken to be a discharge to the registrar for the amount of the payment.(3) Subject to subrule (2), any direction, cheque or other document for the payment of money out of court is taken, when signed by the payee, to be a discharge to the registrar for the amount of the payment.(4) Nothing in subrule (2) or (3):(a) prevents the registrar from requiring a receipt for any payment made by the registrar, or(b) affects the operation of the Stamp Duties Act 1920 or the Duties Act 1997.
(cf SCR Part 47, rule 3)
(1) This rule applies to funds in the Supreme Court.(2) If:(a) the interest of any person in any funds in court has been mortgaged, charged or assigned, or(b) a person having an interest in any funds in court is a debtor under a judgment or order of the court,the court may, on application by the mortgagee, chargee, assignee or creditor under the judgment or order, make an order prohibiting the transfer, sale, delivery out, payment or other dealing in respect of the whole or any part of the funds, or of any income derived from the funds, without notice to the applicant.(3) An application under subrule (2) is to be made:(a) if there are proceedings in the court in relation to the funds, by notice of motion in the proceedings, or(b) in any other case, by summons joining as defendants all persons whose interests may be affected by the application.(4) The notice of motion or summons must be served on each person whose interest may be affected by the application, but not on any other person.(5) The court may, on terms, dispense with the joinder of any person as defendant and dispense with service on any person.(6) The court may order the applicant for an order under subrule (2) to pay the costs of any party to any proceedings in relation to which the funds are in court, or of any other person interested in the funds.(7) Subrule (6) does not affect the general powers of the Supreme Court as to costs.