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Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 6 June 2020 at 12:09)
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,and, if so served, has effect as if it had been served on all of the partners.(c) such of the judgment debtor’s partners as are within New South Wales,
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.