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Contents (1970 - 01)
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Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 18 August 2017 at 07:34)
Schedule J
Schedule J Procedure under various Acts
(Part 12, rule 1A)
Part 1 Acts of New South Wales
1   Commencement of proceedings
Proceedings in the Court on an application for relief under the Act must be commenced by summons.
2   Additions to title
A summons in proceedings for relief under the Act must bear, above the title, the words “Estate of”, the full name of the deceased person and the words “deceased and the Family Provision Act 1982”.
3   Search in index
Any person may, on payment of the fee (if any) fixed under the Act, search in the index kept in the registry against the name of the deceased person in relation to whom any application for an order under the Act has been made.
4   Extension of time for application for provision
A claim for an order under section 16 (2) or (5) may be included in a claim for an order under section 7.
5   Affidavit of administrator
(1)  In proceedings for an order under section 7, the administrator must make an affidavit setting out the following:
(a)  the nature and value of the assets and liabilities at the date of death,
(b)  what is or is likely to be the nature and value of:
(i)  any distributed estate, and
(ii)  the net distributable estate,
(c)  what is the nature and value of any property which, in his or her opinion, is or may be the subject of any prescribed transaction,
(d)  the names and addresses of every person who, in his or her opinion, is or may be:
(i)  an eligible person (designating as a person under legal incapacity any eligible person who, in his or her opinion, is or may be a person under legal incapacity), or
(ii)  a person beneficially entitled to the distributable estate, or
(iii)  a disponee, within the meaning of section 21, or
(iv)  a person holding property as a result of a distribution from the estate,
(e)  the persons to whom notice was given under clause 9 (2).
(2)  The affidavit mentioned in subclause (1) must be served within a reasonable time after service of the originating process.
6   Parties
(1)  In proceedings on an application by summons for an order under section 7 or 16 (2) or (5), the summons must, subject to subclause (2), join as a defendant every administrator.
(2)  The summons must not join as a defendant:
(a)  any person, if any plaintiff is the sole administrator, or
(b)  any person, if there is sufficient reason for not doing so.
7   Directions as to parties and service
(1)  Despite clause 6, the Court may, at any stage of the proceedings, direct that any person be added as a party or substituted for another party or a former party or that notice of the proceedings be served on any person in addition to or instead of the defendant.
(2)  Subclause (1) does not affect the powers of the Court under Part 7 of the Uniform Civil Procedure Rules 2005 in relation to the joinder of parties.
8   Representative orders
Rule 7.6 of the Uniform Civil Procedure Rules 2005 applies to proceedings under the Act as it applies to proceedings mentioned in subrule (1) of that rule.
9   Notice to eligible persons
(1)  The plaintiff claiming an order under section 7 must, unless he or she is the administrator, when serving the summons, also serve a notice on the administrator showing who, in his or her opinion, is or may be an eligible person (designating as a person under legal incapacity any eligible person who, in his or her opinion, is or may be a person under legal incapacity).
(2)  The administrator must serve a notice in Form 89B on the following:
(a)  the surviving spouse (if any) of the deceased person,
(b)  every child of the deceased person,
(c)  every person not mentioned in paragraph (a) or (b) who is entitled to share in the distributable estate of the deceased person,
(d)  any person mentioned by the plaintiff in his or her notice served under subclause (1) and not mentioned in paragraph (a), (b) or (c),
(e)  any other person who, in his or her opinion, is or may be an eligible person.
10   Additional provision
An application for an order under section 8 (which section relates to the making of additional provision) must be made by motion in the proceedings for the order under section 7.
11   Certified copies of orders
(1)  If an order is made under section 7 (not being an interim order), 8, 19 (2) or (3) or 30, an administrator must, unless the Court otherwise orders, within the time prescribed by subclause (2), lodge in the registry:
(a)  the probate, letters of administration or copy of election, as the case may require, bearing a copy of the minute of order, and
(b)  a copy of the minute of order.
(2)  The time prescribed for the purpose of subclause (1) is:
(a)  if an administrator is a defendant—14 days after the date of service of an office copy of the minute of order on him or her, and
(b)  in any other case—28 days after the order is entered.
(3)  The registrar must, unless the Court otherwise orders:
(a)  certify on each copy that it is a true copy of the minute of order, and
(b)  send the copy mentioned in subclause (1) (b) to the Registrar in Probate.
12   Revocation etc of order for provision
An application for an order under section 19 (2) must be made by motion in the proceedings for the order under section 7.
13   Discharge of property from liability
An application for an order under section 30 (1) or (2) must be made by motion in the proceedings in which the order for provision has been, or is proposed to be, made.
14   Revocation of release
An application for an order under section 31 (8) or (9) must be made by motion in the proceedings for the order under section 31 (6).
15   Notice of intended distribution
(1)  A notice under section 35 must be published:
(a)  if the deceased person was resident at the date of the deceased person’s death in the State—in a newspaper circulating in the district where the deceased person resided, or
(b)  otherwise—in a Sydney daily newspaper,
and must be served on all persons of whose intention to bring an application under the Act the administrator has notice.
(2)  The notice may be in or to the effect of Form 121.
1   Applications concerning contraventions of dispute orders
(1)  Proceedings in the Court on an application under section 139 of the Act must be commenced by summons (the commencement summons).
(2)  The commencement summons must state the following:
(a)  the name and address of the person by whom the proceedings are brought (the prosecutor),
(b)  the capacity in which the prosecutor is taking the proceedings,
(c)  the name and address of the person against whom the proceedings are brought (the defendant),
(d)  the details and nature of the contravention that is alleged to have occurred.
(3)  The commencement summons must be accompanied by a draft summons requiring the defendant to appear before the Court at the time specified to show cause why the Court should not take action for the alleged contravention (a show cause summons).
(4)  The details and nature of the alleged contravention must be verified by a supporting affidavit made by the prosecutor.
(5)  If a show cause summons is issued by the Court, the summons and supporting affidavit must be served on the defendant in accordance with the directions given by the Court as to service.
(6)  An affidavit of service of the show cause summons, or notice that service has not been effected, must be filed by the prosecutor before the return date specified in the summons.
(7)  If the show cause summons has not been served by the return date, the Registrar must, on an application made by the prosecutor in accordance with this rule, amend the summons to specify a new return date.
2   Proceedings to recover civil penalties
(1)  Proceedings in the Court to recover a civil penalty under section 357 of the Act must be commenced by a verified statement of claim.
(2)  The statement of claim must state the following:
(a)  the name and address of the person by whom the proceedings are brought (the plaintiff),
(b)  the capacity in which the plaintiff is taking the proceedings,
(c)  the name and address of the person against whom the proceedings are brought (the defendant),
(d)  the provision of the industrial instrument that the defendant is alleged to have contravened,
(e)  the nature of the contravention that is alleged,
(f)  particulars of any payment that it is alleged the defendant has failed to make,
(g)  whether an application is to be made under section 358 of the Act, or under any other Act, for the recovery of any such payment.
1   Commencement of proceedings
An application for a family provision order under Chapter 3 of the Act:
(a)  must join as a defendant any administrator, unless the plaintiff is the sole administrator, and
(b)  must not join any person unless there is sufficient reason for doing so.
2   Directions as to parties and service
(1)  Despite clause 1, the Court may, at any stage of the proceedings, direct that any person be added as a party or substituted for another party or a former party or that notice of the proceedings be served on any person in addition to or instead of the defendant.
(2)  Subclause (1) does not affect the powers of the Court under Part 7 of the Uniform Civil Procedure Rules 2005 in relation to the joinder of parties.
3   Representative orders
Rule 7.6 of the Uniform Civil Procedure Rules 2005 applies to proceedings under the Act as it applies to proceedings mentioned in subrule (1) of that rule.
4   Notice to eligible persons
(1)  The plaintiff applying for a family provision order under Chapter 3 must, unless he or she is the administrator, when serving the application, also serve a notice on the administrator showing who, in his or her opinion, is or may be an eligible person (designating as a person under legal incapacity any eligible person who, in his or her opinion, is or may be a person under legal incapacity).
(2)  The administrator must serve a notice in accordance with subclause (3) on the following:
(a)  the surviving spouse (if any) of the deceased person,
(b)  every child of the deceased person,
(c)  every person not mentioned in paragraph (a) or (b) who is entitled to share in the distributable estate of the deceased person,
(d)  any person mentioned by the plaintiff in his or her notice served under subclause (1) and not mentioned in paragraph (a), (b) or (c),
(e)  any other person who, in his or her opinion, is or may be an eligible person.
(3)  The notice must set out the following:NOTICE OF CLAIM
The plaintiff has applied to the Court under the Succession Act 2006 for a family provision order in respect of the estate of (name) deceased who died on (date).
If you are entitled to, and wish to apply for, an order for provision for you out of that estate, you must apply within a period prescribed by the Succession Act 2006 or allowed by the Court. If you do not, before the Court deals with the plaintiff’s application, apply for an order for provision for you out of that estate, the Court may deal with the plaintiff’s application without regard to any possible application by you.
Dated:
(signature)
Solicitor for the administrator
(Address for service)
(or as the case may be)
5   Affidavit of administrator
(1)  In proceedings for a family provision order under Chapter 3, the administrator must make an affidavit setting out the following:
(a)  the nature and value of the assets and liabilities at the date of death,
(b)  what is or is likely to be the nature and value of:
(i)  any distributed estate, and
(ii)  the net distributable estate,
(c)  what is the nature and value of any property which, in the administrator’s opinion, is or may be the subject of any prescribed transaction or any relevant property transaction,
(d)  the names and addresses of every person who, in the administrator’s opinion, is holding property as trustee or otherwise which is or may be the subject of any prescribed transaction or relevant property transaction,
(e)  the names and addresses of every person who, in the administrator’s opinion, is or may be:
(i)  an eligible person (designating as a person under legal incapacity any eligible person who, in his or her opinion, is or may be a person under legal incapacity), or
(ii)  a person beneficially entitled to the distributable estate, or
(iii)  a person holding property as trustee or otherwise,
(f)  the names and addresses of every person to whom the administrator has given notice of the plaintiff’s application.
(2)  The affidavit mentioned in subclause (1) must be served within a reasonable time after service of the application.
1   Commencement of proceedings
(1)  The summons commencing proceedings under the Act may state an appointment for hearing.
(2)  The summons must bear, above the title, the words “Estate of”, the full name of the deceased person and the words “deceased and the Testator’s Family Maintenance, etc Act 1916”.
2   Parties
(1)  This clause applies to proceedings for an order under section 3 or 5 (2A).
(2)  In proceedings to which this clause applies, subject to subclause (3), the summons must join as a defendant every executor or administrator.
(3)  The summons must not join as a defendant:
(a)  any person, if any plaintiff is the sole executor or administrator, or
(b)  an executor or administrator who is a plaintiff, or
(c)  any person, if there is sufficient reason for not doing so.
3   Extension of time for application
A claim for an order under section 5 (2A) may be included in the summons claiming an order under section 3.
4   Affidavit of executor
(1)  In proceedings for an order under section 3, the executor or administrator, as the case may be, must make an affidavit setting out:
(a)  the nature and value of the assets and liabilities at the date of death, and
(b)  what is or is likely to be the nature and net amount of the distributable estate, and
(c)  such information as is available to the deponent as to the family of the deceased, and
(d)  the person beneficially entitled.
(2)  The affidavit mentioned in subclause (1) must be served within a reasonable time after service of the summons commencing the proceedings.
5   Additional provision
An application for an order under section 6A (which section relates to the making of additional provision) may be made by motion in the proceedings for an order under section 3.
6   Directions as to parties and service
(1)  The Court may, at any stage of the proceedings to which these clauses apply, direct that any person be added as a party or substituted for another party or a former party or that notice of the proceedings be served on any person in addition to or instead of the defendant.
(2)  Subclause (1) does not affect the powers of the Court under Part 7 of the Uniform Civil Procedure Rules 2005 in relation to the joinder of parties.
7   Representative orders
Rule 7.6 of the Uniform Civil Procedure Rules 2005 applies to proceedings under the Act as it applies to proceedings mentioned in subrule (1) of that rule.
8   Certified copies of order
(1)  The Court may, but need not, make any direction or requirement under section 6 (3).
(2)  Unless the Court otherwise orders, in every case in which provision is made under the Act, a certified copy of the minute of the order making the provision must be made on the probate, the letters of administration, or a copy of an election under section 18A of the Public Trustee Act 1913, whichever is appropriate.
(3)  Unless the Court otherwise orders, an executor or administrator must, within the time prescribed by subclause (4), lodge in the registry:
(a)  the probate, the letters of administration or the copy of the election, as the case may require, bearing a copy of the minute of order, and
(b)  a copy of the minute of order.
(4)  The time prescribed for the purpose of subclause (3) is:
(a)  if an executor or administrator is a defendant—14 days after the date of service of an office copy of the minute of order on the defendant, and
(b)  in any other case—28 days after the order is entered.
(5)  The registrar must:
(a)  certify on each copy that it is a true copy of the minute of order, and
(b)  send the copy mentioned in subclause (3) (b) to the Registrar in Probate.
9   Notice of intended distribution
A notice under section 11 may be in or to the effect of Form 121.
Part 2
  (Repealed)