Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 15 August 2020 at 12:32)
Part 39
Part 39 Enforcement of judgments
Division 1 Enforcement of writs of execution generally
39.1   Circumstances in which issue of writ requires leave
(cf SCR Part 44, rule 2)
(1)  A writ of execution may not be issued in the following circumstances except by leave of the court—
(a)  if there has been any change in the persons entitled or liable to execution under the judgment, whether by assignment, death or otherwise,
(b)  if the judgment is against the assets of a deceased person coming to the hands of an executor or administrator after the judgment took effect, and the writ is against those assets or any of them,
(c)  if a person’s entitlement under the judgment is subject to fulfilment of a condition,
(d)  if the writ is a writ for the possession of land,
(e)  if the writ is against property in the hands of a receiver appointed by the court,
(f)  if the writ is against property in the hands of a sequestrator,
(g)  if the writ is in aid of another writ of execution.
Note.
 See also section 134 of the Civil Procedure Act 2005 with respect to stale judgments.
(2)  If leave is required, it may be applied for in the notice of motion for the issue of the writ of execution.
(3)  The motion for leave must be supported by the following evidence—
(a)  evidence that the applicant is entitled to proceed to execution on the judgment,
(b)  evidence that the person against whom execution is sought to be issued is liable to execution on the judgment,
(c)  if the judgment is for the payment of money, evidence as to the amount due on the date of the motion,
(d)  if subrule (1)(a) applies, evidence as to the change which has taken place,
(e)  if subrule (1)(b) or (c) applies, evidence that a demand to satisfy the judgment has been made on the person liable to satisfy it and that the person has not satisfied it.
(4)  Subrule (1) does not limit the operation of any other Act or law that requires leave for the issue of a writ of execution.
39.2   Application for writ of execution
(1)  An application for a writ of execution in respect of a judgment is to be made by way of notice of motion.
(2)  Unless the court orders otherwise, a notice of motion under this rule—
(a)  may be dealt with in the absence of the parties, and
(b)  need not be served on the judgment debtor.
(3)  The application must indicate the extent (if any) to which the judgment debt has been satisfied under any writ of execution, garnishee order or charging order issued by the court.
39.3   Affidavit in support of application for writ of execution
(cf DCR Part 34, rule 13)
(1)  Unless the court orders otherwise, an applicant for a writ of execution must file an affidavit in support of the application, being an affidavit sworn not more than 14 days before the date of filing.
(2)  In the case of a writ for the possession of land, the affidavit in support—
(a)  must identify any persons (other than parties to the proceedings) who were in occupation of the whole or any part of the land—
(i)  as at the time the originating process was filed, or
(ii)  if the claim for possession arises from an amendment to the originating process, as at the time the amendment was made,
and, if any such person was in occupation of the land pursuant to a right of occupation under a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010, must contain a statement to that effect, and
(b)  in relation to each such person—
(i)  must state that the person’s occupation of the land is not to be disturbed, or
(ii)  must state that the person is no longer in occupation of any part of the land, or
(iii)  must state that the person has been served with a notice pursuant to rule 6.8 or rule 36.8A and that the time allowed for the person to apply to the court to be joined as a defendant or to stay enforcement of the judgment, as required, has now passed,
as the case requires, and
(c)  if the claim for possession of the land arises from a default in the payment of money, must give the particulars required under subrule (2A), and
(d)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the occupation of the land and any default in the payment of money referred to in paragraph (c), and
(e)  must state whether costs are claimed and, if costs are claimed and the costs claimable are fixed by law, the amount (not exceeding the amount so fixed) that is claimed for costs.
Note.
 The costs fixed by law referred to in paragraph (e) include costs that are fixed under section 59(1)(d) of the Legal Profession Uniform Law Application Act 2014.
(2A)  The particulars required for the purposes of subrule (2)(c) are—
(a)  if judgment has been entered for the payment of money in addition to possession of the land—each of the following particulars—
(i)  the amount of the judgment debt,
(ii)  the amount of interest accruing on the judgment debt to date,
(iii)  any payments made by or on behalf of the judgment debtor after judgment was entered,
(iv)  the current amount owing taking into account the matters referred to in subparagraphs (i), (ii) and (iii), or
(b)  if judgment has been entered only for possession of the land—each of the following particulars—
(i)  the amount owing following the default,
(ii)  any payments made to date to reduce the amount owing,
(iii)  the current amount owing taking into account any such payments.
(3)  In the case of a writ for the delivery of goods, the affidavit in support—
(a)  must state which goods have not been delivered to the plaintiff since the time the judgment was given, and
(b)  must give particulars of any payments that the defendant has made to the plaintiff in respect of the goods or state that no such payments have been made, as the case may be, since the time the judgment was given, and
(c)  must state the address at which the goods are alleged to be located.
(4)  In the case of a writ for the levy of property, the affidavit in support—
(a)  must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit, and
(b)  must state the address or addresses at which property belonging to the judgment debtor may be located, and
(c)  if the judgment was entered as a result of the filing of a cost assessor’s certificate, must include a statement to that effect, together with a statement to the effect that the determination set out in the certificate—
(i)  is not subject to any suspension under section 86 of the Legal Profession Uniform Law Application Act 2014 that has not been ended under that section, and
(ii)  is not subject to any suspension under section 90 of the Legal Profession Uniform Law Application Act 2014 that has not been ended under that section.
(5)  Any application by the judgment creditor for a writ of execution in relation to a judgment debt that has been the subject of an instalment order that has ceased to have effect may not be granted unless the judgment creditor has filed an affidavit as to the judgment debtor’s failure to comply with the order.
(6)  A reference in this rule to a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 is taken to include a reference to a residential tenancy agreement within the meaning of the Residential Tenancies Act 1987 as in force before its repeal.
39.3A   Sheriff to be informed of persons in occupation of land
(1)  This rule applies to—
(a)  a writ for the possession of land, and
(b)  a writ for the levy of property in respect of which a notice of sale of land has been filed as referred to in rule 39.22(1)(b).
(2)  If the Sheriff so requests, the judgment creditor or other person for whose benefit the writ has been issued must inform the Sheriff as to whether any person is in occupation of the land pursuant to a right of occupation under a residential tenancy agreement, within the meaning of the Residential Tenancies Act 2010.
(3)  A reference in this rule to a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 is taken to include a reference to a residential tenancy agreement within the meaning of the Residential Tenancies Act 1987 as in force before its repeal.
39.4   Order in which writs for the levy of property to be dealt with
(cf SCR Part 44, rule 8; Act No 9 1973, section 108)
Writs for the levy of property against the same judgment debtor are to be enforced by the Sheriff in the order in which they are received by the Sheriff, regardless of the order in which they were issued.
39.5   Property to be sold promptly
(cf SCR Part 45, rule 5)
Subject to this Division, any property to be sold under a writ for the levy of property must be put up for sale as soon as practicable, having due regard to the interests of each of the parties and to the need to avoid of the sacrifice of the reasonable value of the property.
39.6   Order in which property to be sold
(cf SCR Part 45, rule 4; Act No 9 1973, section 110; Act No 11 1970, section 62A)
(1)  If it appears to the Sheriff that the value of the property affected by a writ for the levy of property is greater than the amount outstanding under the judgment debt, the Sheriff may not cause to be sold any more of the property than is sufficient to satisfy the judgment.
(2)  Subject to subrule (3), property is to be sold—
(a)  in such order as seems to the Sheriff best for the speedy satisfaction of the judgment without undue expense, and
(b)  subject to paragraph (a), in such order as the judgment debtor may direct, and
(c)  subject to paragraphs (a) and (b), in such order as seems to the Sheriff best for minimising hardship to the judgment debtor or any other person.
(3)  Land must not be sold before any other property unless—
(a)  the judgment debtor so requests, or
(b)  the Sheriff is satisfied that the land should be sold before the other property in order to minimise hardship to the judgment debtor or some other person.
39.7   Sale to be by public auction
(cf DCR Part 35, rule 5; LCR Part 30, rule 15)
(1)  Subject to rule 39.13, property sold under a writ for the levy of property must be sold by public auction, by the Sheriff or by an auctioneer appointed under rule 39.8, to the highest bidder.
(2)  Property must not be sold by public auction for a price substantially below its approximate market value, as fixed by the Sheriff under rule 39.10.
39.8   Auctioneer
(cf SCR Part 45, rule 6; DCR Part 35, rule 3A; LCR Part 30, rule 13A)
(1)  If the nature and apparent value of property to be sold under a writ for the levy of property is such that it appears to the Sheriff that it is reasonable to sell the property, the Sheriff may appoint a duly qualified auctioneer to sell the property.
(2)  An auctioneer appointed to sell any property under a writ for the levy of property must, as soon as practicable after the Sheriff advises that the auctioneer’s services will not be required in respect of the writ, or otherwise requests an account of the auctioneer’s charges, advise the Sheriff of the amount of those charges to date.
(2A)  If, after the appointment of the auctioneer, it appears to the Sheriff that it is not reasonable to proceed with the sale, the Sheriff may direct that the property be withdrawn from sale.
(3)  An auctioneer appointed by the Sheriff to sell property under a writ for the levy of property must as soon as practicable after receiving any money under the writ pay the money to the Sheriff, less the amount of any charges payable to the auctioneer in respect of the writ.
39.9   Sale to be arranged so as to obtain highest prices
(cf SCR Part 45, rules 5, 7 and 8; Act No 11 1970, section 59)
For the purpose of obtaining the highest prices for the property, the Sheriff—
(a)  must ascertain what appears to the Sheriff to be the best place for the sale to be held, and
(b)  must cause the sale to be held at the place so ascertained.
39.10   Approximate market value
(cf SCR Part 45, rule 7; DCR Part 35, rule 8; LCR Part 30, rule 6)
(1)  Before selling property under a writ for the levy of property, the Sheriff must fix the approximate market value of the property, having regard to all the circumstances of the case, but need not disclose that value to any other person before the sale.
(2)  For the purpose of fixing such a value, the Sheriff—
(a)  may require the judgment creditor to furnish the Sheriff with any information known to, or reasonably capable of ascertainment by, the judgment creditor in respect of the property, and
(b)  may engage a suitably qualified and experienced valuer to provide the Sheriff with an opinion as to the value of the property if the nature and apparent value of the property so warrant.
(3)  If the judgment creditor unreasonably fails to furnish any information referred to in subrule (2)(a), the Sheriff must report the failure to the court, and may refuse to proceed further towards the sale of the property.
39.11   Postponement
(cf DCR Part 35, rule 6; LCR Part 30, rule 16)
(1)  The Sheriff may from time to time postpone the sale of property under a writ for the levy of property, or require any auctioneer appointed to sell the property to postpone any such sale, if the Sheriff thinks it proper to postpone the sale—
(a)  to avoid a sacrifice of the reasonable value of the property, or
(b)  to comply with a request by the judgment creditor for the postponement.
(2)  If the date to which the sale of property is postponed under subrule (1) falls after the date on which the writ would otherwise expire, the date of expiry of the writ is postponed to the date of the postponed sale.
39.12   Suspension of execution by judgment creditor
(cf DCR Part 34, rule 8; LCR Part 30, rule 7)
(1)  If, at any time before property is seized under a writ for the levy of property, the judgment creditor—
(a)  requires the Sheriff, by notice in writing, to suspend execution of the writ, or
(b)  requires the Sheriff, by a subsequent notice in writing, to resume execution of the writ,
the Sheriff must comply with the requirement.
(2)  If, at any time after property is seized under a writ for the levy of property, the judgment creditor (having entered into an arrangement with the judgment debtor with respect to the Sheriff’s withdrawal and re-entry into possession of the property and notified the Sheriff of the arrangement)—
(a)  requires the Sheriff, by notice in writing, to withdraw from possession of the property and suspend execution of the writ, or
(b)  requires the Sheriff to re-enter into possession of the property and resume execution of the writ,
the Sheriff must comply with the requirement.
(3)  If, at any time after property is seized under a writ for the levy of property, the judgment creditor (not having notified the Sheriff of an arrangement referred to in subrule (2)) requires the Sheriff, by notice in writing, to withdraw from possession of the property and suspend execution of the writ, the judgment creditor is taken to have abandoned the execution, and the Sheriff must withdraw from possession of the property.
(4)  For the purposes of subrule (3), a request to postpone the sale of property under a writ for the levy of property is not a request to withdraw from possession of the property or to suspend execution of the writ.
(5)  The Sheriff’s duty under this rule to resume execution of a writ for the levy of property (the original writ) is subject to the Sheriff’s duties under this Part with respect to any other writ for the levy of property that had been issued against the same judgment debtor when execution of the original writ was suspended and, for that purpose, any other such writ is to be executed, and the proceeds of sale dealt with, as if that other writ had been received by the Sheriff before the original writ.
39.13   Sale by private treaty
(cf SCR Part 45, rule 11; DCR Part 35, rule 8; LCR Part 30, rule 18)
(1)  If, at a public auction, the highest bid of property to be sold under a writ for the levy of property is substantially below their approximate market value, as fixed by the Sheriff, the Sheriff or (if the Sheriff so approves) the auctioneer may sell the property by private treaty.
(2)  The Sheriff must not approve a sale of property by private treaty at a price substantially below a fair value determined by the Sheriff.
(3)  In determining a fair value for the property for the purposes of subrule (2), the Sheriff—
(a)  must take into account all the relevant circumstances, including but not limited to—
(i)  the approximate market value of the property fixed by the Sheriff, and
(ii)  the amount of the highest bid for the property at the public auction, and
(iii)  the likelihood or otherwise of there being a higher bid if the property were again put up for sale by public auction, and
(b)  must not determine a fair value that is substantially below the amount of the highest bid for the property at the public auction.
39.14   Conditions of sale
(cf DCR Part 35, rule 9; LCR Part 30, rule 19)
(1)  The Sheriff may sell property under a writ for the levy of property, or require any auctioneer appointed to sell such property—
(a)  on terms as to payment that the purchaser must pay—
(i)  an amount equal to at least 10% of the purchase price by way of deposit forthwith on the sale, and
(ii)  the balance of the purchase price within such period, not exceeding 2 days after the sale (in the case of goods) and 6 weeks after the sale (in the case of land), as the Sheriff may determine prior to the sale, or
(b)  on terms as to payment that the purchaser must pay the whole of the purchase price forthwith on the sale.
(2)  If a sale of property is partly of goods and partly of land, the goods may be sold on the same terms as to payment as the land.
(3)  The Sheriff may require payment to be in cash, by bank draft or, if the Sheriff so approves, by credit card.
(4)  If payment is made by credit card, any charge made to the Sheriff or auctioneer in respect of the payment is to form part of the costs of the execution.
39.15   How proceeds of enforcement to be applied
(cf Act No 8 1901, sections 9 and 17; LCR Part 30, rule 20)
(1)  The proceeds of enforcement of a writ for the levy of property are to be applied as follows—
(a)  firstly, to the Sheriff to cover the Sheriff’s fees and expenses in executing the writ,
(b)  secondly, to the judgment creditor to satisfy the judgment debt,
(c)  thirdly, to the judgment debtor as to any amount remaining.
(2)  If the Sheriff receives writs for the levy of property (whether from the same or from different courts) in relation to more than one judgment creditor, the judgment creditors are to be paid from the proceeds of enforcement of the writs in the order in which the writs were received by the Sheriff.
39.16   Account
(cf DCR Part 34, rule 9; LCR Part 30, rule 8)
On the request of the judgment creditor, or of any person who claims that his or her property has been sold by the Sheriff under a writ for the levy of property, the Sheriff must give that judgment creditor or person—
(a)  a report of any sale under the writ, and
(b)  an account of—
(i)  the proceeds of the sale and any other money received under the writ, and
(ii)  the Sheriff’s fees and expenses in relation to the writ, and
(iii)  the manner of disposal of the proceeds or other money.
39.17   Sheriff may require security for costs of execution
(cf DCR Part 34, rule 7; LCR Part 30, rule 5)
(1)  At any time after receiving a writ of execution, the Sheriff may require the judgment creditor—
(a)  to lodge such security for payment of the Sheriff’s costs in relation to the execution of the writ, or
(b)  to give such undertaking as to payment of the Sheriff’s costs in relation to the execution of the writ,
as the Sheriff considers appropriate.
(2)  If the judgment creditor fails to comply with such a requirement, the Sheriff—
(a)  may refuse to execute the writ, and
(b)  may withdraw from any possession into which the Sheriff may have entered under the writ.
39.18   Sheriff to serve copy of writ when executing or attempting to execute writ
(cf DCR Part 34, rule 5)
On executing a writ of execution, the Sheriff must cause a copy of the writ to be served on the judgment debtor or left in a conspicuous position at the place where the writ was executed.
39.19   When writ may not be executed
(cf DCR Part 34, rule 10)
(1)  A writ of execution may not be executed on Christmas Day or Good Friday.
(2)  The Sheriff is not required to execute a writ of execution on any day on which court registries need not be open.
39.20   Expiry and renewal of writ of execution
(cf SCR Part 44, rule 8; DCR Part 34, rule 2; LCR Part 30, rule 1, Part 30A, rule 2)
A writ of execution has effect for 12 months but may, subject to these rules, be renewed by the court.
Division 2 Enforcement of writs against land
39.21   Judgment creditor’s notice to judgment debtor
(cf DCR Part 36, rule 2; LCR Part 30A, rule 3)
(1)  A judgment creditor may file an affidavit verifying—
(a)  the registration of a writ for the levy of property—
(i)  in the Register kept under the Real Property Act 1900, pursuant to section 105 of that Act, or
(ii)  in the General Register of Deeds kept under the Conveyancing Act 1919, pursuant to section 186 of that Act, and
(b)  the receipt by the judgment creditor of advice from the Sheriff to the effect that the Sheriff cannot obtain satisfaction of the writ by proceeding further against the goods of the judgment debtor.
Note.
 Section 72 of the Fines Act 1996 provides that a property seizure order under that section operates as a writ for the levy of property issued by the Local Court and, for that purpose, that the State Debt Recovery Office is taken to be the judgment creditor.
(1A)  A copy of the advice referred to in subrule (1)(b) must be annexed to the affidavit.
(2)  On filing an affidavit referred to in subrule (1) the judgment creditor may lodge with the registrar in duplicate, and the registrar must seal, a notice (the judgment creditor’s notice) advising the judgment debtor of the following—
(a)  that a writ for the levy of property has been registered as referred to in subrule (1)(a),
(b)  that the judgment creditor intends that land of the judgment debtor be sold after the lapse of 4 weeks,
(c)  that the judgment debtor is entitled to sell or mortgage the land, but only in accordance with section 113 of the Civil Procedure Act 2005,
(d)  that the judgment debtor is entitled to apply for an instalment order under section 107 of the Civil Procedure Act 2005.
(3)  A sealed copy of the judgment creditor’s notice is to be served on the judgment debtor.
39.22   Judgment creditor’s application for sale
(cf DCR Part 36, rules 4 and 6; LCR Part 30A, rules 5 and 7)
(1)  Land may not be sold under a writ for the levy of property until the following steps have been completed—
(a)  the judgment creditor has filed an affidavit of service of a judgment creditor’s notice under rule 39.21,
(b)  the judgment creditor has filed a notice of sale in the approved form (the notice of sale) and lodged 6 copies of it with the registrar,
(c)  the registrar has sealed each copy of the notice of sale so lodged and returned them to the judgment creditor,
(d)  the judgment creditor has given the 6 sealed copies of the notice of sale to the Sheriff,
(d1)  if required to do so under rule 39.3A, the judgment creditor has informed the Sheriff, in accordance with that rule, as to whether any person is in occupation of the land,
(e)  the Sheriff has fixed a date for the sale of the land, being a date occurring not less than 4 weeks after the date on which the judgment creditor’s notice was served on the judgment debtor,
(f)  the Sheriff has inserted the date so fixed in each copy of the notice of sale,
(g)  the Sheriff has returned 2 copies of the notice of sale, in which the date for the sale of the land has been inserted, to the judgment creditor,
(h)  at least one week before the date for the sale of the land, the judgment creditor has served a copy of the notice of sale, in which the date for the sale of the land has been inserted, on the judgment debtor,
(i)  the judgment creditor has furnished to the Sheriff such information as in his or her possession, or as he or she can reasonably obtain, that is relevant to the ascertainment of the value of the interest to be sold, including—
(i)  particulars of the value most recently assigned by the Valuer-General to the land the subject of the interest, and
(ii)  particulars of the title to that land as revealed by a recent search at the office of the Registrar-General.
(2)  The approved form referred to in subrule (1)(b) must contain a statement reminding the judgment debtor of his or her right to apply for an instalment order under section 107 of the Civil Procedure Act 2005.
39.23   Sale to be publicly advertised
(cf DCR Part 36, rule 8; LCR Part 30A, rule 9)
(1)  The Sheriff, or the auctioneer appointed by the Sheriff, must cause an advertisement of any sale of land, including a full description of the land, to be published in the Gazette, and in a newspaper circulating in the district in which the land is situated, at least one week before the date fixed for the sale.
(2)  The sale of any land under a writ for the levy of property may, in addition to being advertised under subrule (1), be further advertised by the Sheriff, or the auctioneer appointed to sell the land, if the further advertisement is approved by the Sheriff.
39.24   Proof of service and publication
(cf DCR Part 36, rule 9; LCR Part 30A, rule 10)
Before the sale of any land takes place under a writ for the levy of property, the judgment creditor must lodge with the Sheriff an affidavit as to—
(a)  the service on the judgment debtor of the notice of sale under rule 39.22, and
(b)  the date and particulars of publication of each advertisement published under rule 39.23 in relation to the sale.
39.25   Satisfaction by judgment debtor
(cf DCR Part 36, rule 7; LCR Part 30A, rule 8)
If, before or at the time fixed for the sale of land under a writ for the levy of property, the judgment debtor indicates to the Sheriff, or to the auctioneer appointed to sell the land, that the judgment debtor intends to satisfy the writ, the judgment debtor must pay to the Sheriff or auctioneer—
(a)  the amount due under the judgment, including interest, and
(b)  the costs of the execution then known to the Sheriff or auctioneer, including any fees payable in respect of the execution to an auctioneer, and
(c)  an amount determined by the Sheriff as security for the judgment creditor’s costs of the execution other than those referred to in paragraph (b),
and, on receipt of the money, the Sheriff or auctioneer must cancel the sale.
39.26   Documents giving effect to sale
(1)  If land is sold at auction under a writ for the levy of property, the Sheriff and the purchaser must each sign an appropriate contract of sale forthwith after the auction is completed.
(2)  As soon as practicable after receiving payment in full for land sold under a writ for the levy of property, an appropriate conveyance or transfer (to be prepared by the purchaser) must be executed by the Sheriff and delivered to the purchaser for the purpose of giving effect to the sale.
39.27   Sheriff or auctioneer to report
(cf DCR Part 36, rule 12; LCR Part 30A, rule 15)
As soon as practicable after the sale of land under a writ for the levy of property has been completed, the Sheriff or auctioneer appointed to sell land must make a report to the registrar as to—
(a)  the approximate market value of the land fixed by the Sheriff, and
(b)  the amount of the highest bid at the sale, and
(c)  whether or not the judgment debtor was identified to the Sheriff or auctioneer as being present at the sale, and
(d)  the amount of the auctioneer’s charges, and
(e)  any other matter which the Sheriff or auctioneer considers should be reported to the registrar.
39.28   Payment to judgment debtor
(cf DCR Part 36, rule 13; LCR Part 30A, rule 16)
(1)  A judgment creditor at whose request a writ for the levy of property has been issued may file—
(a)  evidence of an agreement with the judgment debtor as to the amount of the judgment creditor’s costs of the execution, or
(b)  a notice of motion for the assessment of those costs.
(2)  Any evidence or notice of motion referred to in subrule (1) must be filed within 2 months after the receipt by the issuing registrar of—
(a)  the proceeds of sale of any land, or
(b)  any money under section 113(5) of the Civil Procedure Act 2005, or
(c)  any money under rule 39.25,
or within such further time as may be consented to in writing by the judgment debtor.
(3)  If the judgment creditor files any evidence or notice in accordance with subrule (2), the registrar must as soon as practicable pay to the judgment debtor any money held by the registrar over and above the amount necessary to satisfy the writ for the levy of property.
(4)  If the judgment creditor—
(a)  does not file any evidence or notice in accordance with subrule (2), and
(b)  does not within the time allowed in that regard advise the registrar of any consent by the judgment debtor to extend that time,
the registrar may pay to the judgment debtor any money mentioned in subrule (2) and held by the registrar over and above the total of the amount necessary to satisfy the judgment (including interest) and the costs of the execution (other than solicitor’s profit costs) then known to the registrar.
(5)  The registrar must pay to the judgment creditor any money referred to in this rule that the registrar is not by this rule required to pay to the judgment debtor.
(6)  Nothing in this rule affects the right of the judgment creditor to recover against the judgment debtor the costs of execution of the writ for the levy of property.
Division 3 Enforcement of writs against goods etc
39.29   Removal of goods
(cf DCR Part 35, rule 2; LCR Part 30, rule 12)
(1)  If any goods are seized under a writ for the levy of property, the Sheriff may remove them—
(a)  to a place where, in his or her judgment, the highest prices for the goods are most likely to be obtained, or
(b)  to a place of safe keeping.
(2)  As soon as practicable after removing any such goods, the Sheriff must notify the judgment debtor of their removal and give the judgment debtor an inventory of the goods so removed.
39.30   Time of sale
(cf DCR Part 35, rule 3; LCR Part 30, rule 13)
(1)  Goods must not be sold under a writ for the levy of property before the sixth day after they were seized under the writ.
(2)  Despite subrule (1)—
(a)  goods of a perishable nature may be sold forthwith after they are seized, and
(b)  if the judgment debtor so requests in writing, other goods may be sold at any time.
(3)  Goods seized under a writ for the levy of property are to remain in such custody as the Sheriff may appoint pending their sale under the writ.
39.31   Sale to be publicly advertised
(cf DCR Part 35, rule 4; LCR Part 30, rule 14)
(1)  The Sheriff must cause notice of the intended sale of any goods under a writ for the levy of property to be affixed—
(a)  at or near the entrance to the place where the sale is to be held, or
(b)  if the sale is not to be held in a city or town, at the court-house or some convenient public place,
at least 5 days before the date appointed for the sale.
(2)  If goods are removed from a place in a city or town under rule 39.29(1)(a), the Sheriff must cause notice of the intended sale of the goods to be affixed on or near the entrance to that place at least 5 days before the date appointed for the sale.
(3)  At least 5 days before the date appointed for the sale of any equity of redemption or other equitable interest in any goods, the Sheriff must cause notice of the intended sale, and particulars of the interest to be sold—
(a)  to be affixed at or near the entrance to the place where the sale is to be held, and
(b)  to be advertised in a newspaper circulating in the district in which the sale is to take place.
(4)  In addition to any other notice of a sale that he or she is required to give, the Sheriff must give such notice, by advertisement in a newspaper or otherwise, as appears necessary to give due publicity to the sale.
(5)  If an auctioneer has been appointed by the Sheriff to sell the goods, the notice referred to in subrule (4) may, with the approval of the Sheriff, be given by the auctioneer.
39.32   Sheriff or auctioneer to report
(cf SCR Part 45, rule 14; DCR Part 34, rule 9; LCR Part 30, rule 8)
As soon as practicable after the sale of goods under a writ for the levy of property has been completed, the Sheriff or auctioneer appointed to sell the goods must make a report to the judgment creditor as to results of the sale.
39.33   Possession fees
(cf DCR Part 35, rule 1; LCR Part 30, rule 11)
(1)  No fees for keeping possession of any goods under a writ for the levy of property are payable to any person, or chargeable against the judgment debtor as costs of the execution, if the amount due under the writ is paid to the Sheriff within one hour after they are seized under the writ.
(2)  Subject to subrule (1), if more than one person is necessarily engaged in keeping possession of any goods under a writ for the levy of property, the fees payable to each such person are, unless the court orders otherwise, chargeable against the judgment debtor as part of the costs of the execution.
(3)  This rule does not affect any amount that may be payable to the Sheriff, by way of fees, out of money paid to the Sheriff by the judgment debtor.
Division 4 Garnishee orders
39.34   Application for garnishee order
(1)  An application for a garnishee order in respect of a judgment is to be made by way of notice of motion.
(2)  Unless the court orders otherwise, a notice of motion under this rule—
(a)  may be dealt with in the absence of the parties, and
(b)  need not be served on the judgment debtor or the proposed garnishee.
(3)  The application must indicate the extent (if any) to which the judgment debt has been satisfied under any writ of execution, garnishee order or charging order issued by the court.
39.35   Affidavit in support of application for garnishee order
(1)  Unless the court orders otherwise, an applicant for a garnishee order must file an affidavit in support of the application, being an affidavit sworn not more than 14 days before the date of filing.
(2)  The affidavit in support—
(a)  must identify the garnishee, and any debts that are, or are reasonably likely to be, owed by the garnishee to the judgment debtor, and
(a1)  must state the grounds relied on in support of identifying a debt for the purposes of paragraph (a), and
(b)  must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit, and
(c)  if the judgment was entered as a result of the filing of a cost assessor’s certificate, must include a statement to that effect, together with a statement to the effect that the determination set out in the certificate—
(i)  is not subject to any suspension under section 86 of the Legal Profession Uniform Law Application Act 2014 that has not been ended under that section, and
(ii)  is not subject to any suspension under section 90 of the Legal Profession Uniform Law Application Act 2014 that has not been ended under that section.
(3)  Any application by the judgment creditor for a garnishee order in relation to a judgment debt that has been the subject of an instalment order that has ceased to have effect may not be granted unless the judgment creditor has filed an affidavit as to the judgment debtor’s failure to comply with the order.
39.36   Form of garnishee order for debts
(cf SCR Part 46, rule 3; Act No 9 1973, section 97; Act No 11 1970, section 47)
(1)  A garnishee order for debts must direct the garnishee to pay to the judgment creditor, to the extent of the amount outstanding under the judgment, all money—
(a)  held by the garnishee for or on behalf of the judgment debtor, or
(b)  owed by the garnishee to the judgment debtor.
(2)  The amount outstanding under the judgment must be specified in the order.
39.37   Form of garnishee order for wage or salary
(cf SCR Part 46, rule 3; Act No 9 1973, section 97; Act No 11 1970, section 47)
(1)  A garnishee order for wage or salary must direct the garnishee to pay to the judgment creditor—
(a)  during the period for which the order is in force, and
(b)  to the extent of the amount outstanding under the judgment,
such amounts, from the wages or salary payable by the garnishee to the judgment debtor, as are specified in the order.
(2)  The amount outstanding under the judgment must be specified in the order.
39.38   Court may refuse to make garnishee order
(cf Act No 9 1973, section 97; Act No 11 1970, section 47)
(1)  The court may refuse to make a garnishee order if of the opinion that such an order is inappropriate.
(2)  Without limiting subrule (1), the reasons that may lead the court into forming such an opinion may include—
(a)  the smallness of the amount recoverable under the judgment debt, and
(b)  the smallness of the debt, wage or salary to be attached.
39.39   When garnishee order takes effect
A garnishee order takes effect when it is served on the garnishee.
39.39A   When garnishee not obligated to pay amount to judgment creditor
(1)  A garnishee order does not operate to attach to a debt if the debt is an amount of less than the prescribed minimum account balance, plus $20, standing to the credit of the judgment debtor in a financial institution.
(2)  In this rule, the prescribed minimum account balance means the amount referred to in section 118A(1) of the Civil Procedure Act 2005, as adjusted from time to time under section 118A(2) of that Act.
39.40   Affidavit that no debt due or accruing
(cf Act No 9 1973, section 97A; Act No 11 1970, section 47A)
(1)  A garnishee who believes that—
(a)  no debt from the garnishee to the judgment debtor was due or accruing when the garnishee order was served on the garnishee, or
(b)  no wage or salary will become payable by the garnishee to the judgment debtor during the period for which the order will be in force,
may serve on the judgment creditor a statement to that effect, verified by affidavit, being a statement that contains a summary of the grounds on which the garnishee’s belief is based.
(2)  A disclosure of any information in an affidavit under subrule (1) does not, if the disclosure was reasonable in the circumstances, subject the garnishee to any action, liability, claim or demand.
39.41   Lien or claim of third person
(cf Act No 9 1973, section 104)
(1)  This rule applies in circumstances in which the garnishee claims that some person, other than the judgment debtor, is or may be entitled to—
(a)  any money paid under a garnishee order, or
(b)  any debt, wage or salary attached by a garnishee order, or
(c)  any charge or lien on, or other interest in, any such money, debt, wage or salary.
(2)  In these circumstances, the court may hear and determine the garnishee’s claim and give such judgment or make such order in respect of the claim (including an order barring the claim and an order for the payment into court by a judgment creditor of money received under the garnishee order) as the nature of the case requires.
39.42   Amounts garnishee may retain
For the purposes of section 123(2)(a) of the Civil Procedure Act 2005, the prescribed amount that may be retained by the garnishee out of money deducted under a garnishee order is as specified in item 4 of Schedule 3.
39.43   Notice required for certain attached debts yet to accrue
(cf Act No 9 1973, section 97C; Act No 11 1970, section 47C)
(1)  If a garnishee order attaches a debt that is due for payment to the judgment debtor more than 28 days after service of the order on the garnishee, the garnishee must, within that period of 28 days, cause notice of that fact to be served on the judgment creditor.
(2)  The notice must 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.
Note.
 The giving of false or misleading information in such a notice constitutes an offence under section 307B of the Crimes Act 1900.
39.43A   Application of Division to application for garnishee order by owners corporation relating to unpaid contributions
(1)  This Division applies to an application by an owners corporation for a garnishee order for rent in relation to unpaid contributions in the same way as it applies to an application for a garnishee order for wages or salary, subject to the following—
(a)  a reference to a wage or salary is taken to be a reference to rent,
(b)  an affidavit in support of the application under rule 39.35 must include a statement that the judgment debt relates to an unpaid contribution.
(2)  In this rule, owners corporation and unpaid contribution have the same meanings as in Subdivision 2A of Division 3 of Part 8 of the Civil Procedure Act 2005.
Division 5 Charging orders
39.44   Application for charging order
(1)  An application for a charging order in respect of a judgment is to be made by way of notice of motion.
(2)  Unless the court orders otherwise, a notice of motion under this rule—
(a)  may be dealt with in the absence of the parties, and
(b)  need not be served on the judgment debtor or the proposed chargee.
(3)    (Repealed)
39.45   Affidavit in support of application for charging order
(1)  Unless the court orders otherwise, an applicant for a charging order must file an affidavit in support of the application, being an affidavit sworn not more than 14 days before the date of filing.
(2)  The affidavit in support—
(a)  must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit, and
(b)  if the judgment was entered as a result of the filing of a cost assessor’s certificate, must include a statement to that effect, together with a statement to the effect that the determination set out in the certificate—
(i)  is not subject to any suspension under section 86 of the Legal Profession Uniform Law Application Act 2014 that has not been ended under that section, and
(ii)  is not subject to any suspension under section 90 of the Legal Profession Uniform Law Application Act 2014 that has not been ended under that section, and
(c)  must indicate the extent (if any) to which the judgment debt has been satisfied under any other writ of execution, garnishee order or charging order issued by the court.
(3)  Any application by the judgment creditor for a charging order in relation to a judgment debt that has been the subject of an instalment order that has ceased to have effect may not be granted unless the judgment creditor has filed an affidavit as to the judgment debtor’s failure to comply with the order.
Division 6 General
39.46   Value below which Sheriff may not seize tools of trade
For the purposes of section 106(3)(c) of the Civil Procedure Act 2005, the aggregate value below which tools of trade may not be seized and sold by the Sheriff in execution of a judgment is $2,000.
39.47   Costs of prior execution not enforceable without costs assessor’s certificate
(cf SCR Part 44, rule 10)
Except by leave of the court, the costs referred to in section 137(2)(a) of the Civil Procedure Act 2005 must not be included in the amount for which a writ for the levy of property, garnishee order or charging order may be issued if a cost assessor’s certificate has been issued in respect of the costs of the prior writ or order but has not been filed.
39.48   Charge on partnership interest
(cf SCR Part 47, rule 2)
(1)  An application to the Supreme Court under section 23 of the Partnership Act 1892 (which relates to procedure against partnership property by a judgment creditor of a partner) is to be made—
(a)  if the judgment is a judgment in proceedings in the Supreme Court, by notice of motion in the proceedings, or
(b)  if the judgment is not a judgment in proceedings in the Supreme Court, by summons joining the judgment debtor and his or her partners as defendants.
(2)  An application under section 23 of the Partnership Act 1892 made by a partner of the judgment debtor in consequence of an application under that section made by the judgment creditor is to be made by notice of motion in the proceedings in which the judgment creditor applies.
(3)  A summons or notice of motion filed under this rule, and an order made on an application under section 23 of the Partnership Act 1892, must be served on the following persons (other than the applicant)—
(a)  the judgment creditor,
(b)  the judgment debtor,
(c)  such of the judgment debtor’s partners as are within New South Wales,
and, if so served, has effect as if it had been served on all of the partners.
39.49   Enforcement by or against non-party
(cf SCR Part 42, rule 10)
(1)  If, in any proceedings, a person who is not a party obtains an order, or an order is made in favour of a person who is not a party, that person may enforce the order as if that person were a party.
(2)  If, in any proceedings, a judgment or order may be enforced against a person who is not a party, the judgment or order may be enforced against that person by the same means as if that person were a party.
(3)  If, in any proceedings, compliance with a judgment or order may be enforced against a corporation that is not a party, any senior officer of the corporation is liable to the same process of enforcement as if the corporation were a party.
39.50   Non-performance of condition
(cf SCR Part 42, rule 11)
If a person is entitled under a judgment or order subject to the fulfilment of a condition, but the condition is not fulfilled, then, unless the court orders otherwise—
(a)  the person loses the benefit of the judgment or order, and
(b)  any other person interested may take any steps—
(i)  that are warranted by the judgment or order, or
(ii)  that might have been taken had the judgment not been given or entered or the order not been made.
39.51   Return of writ
(cf SCR Part 44, rule 9; DCR Part 44, rule 6; LCR Part 30, rule 22)
On request by the judgment creditor, the Sheriff must return the writ to the court by which it was issued, together with a notice indicating—
(a)  what action, if any, has been taken in execution of the writ, and
(b)  whether or not the writ has been satisfied.
39.52   Orders authorising entry to premises by Sheriff
An order under section 135(2)(a) of the Civil Procedure Act 2005 may not be made in respect of any goods unless the court is satisfied—
(a)  that, while attempting to seize the goods, the Sheriff has been refused entry to the premises where they are believed to be, or
(b)  that there are special circumstances that justify the making of such an order.