Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 5 August 2020 at 15:44)
Part 39 Division 4
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.