District Court (Garnishee Proceedings) Amendment Act 1987 (NSW)
DISTRICT COURT (GARNISHEE PROCEEDINGS)
AMENDMENT ACT 1987 No. 20
NEW SOUTH WALES
TABLE OF PROVISIONS
1. Short title
2. Commencement
3. Amendment of Act No. 9, 1973
4. Savings and transitional provisions
SCHEDULE I—AMENDMENTS TO THE DISTRICT COURT ACT 1973
DISTRICT COURT (GARNISHEE PROCEEDINGS) AMENDMENT
ACT 1987 No. 20
NEW SOUTH WALES
Act No. 20, 1987
An Act to amend the District Court Act 1973 with respect to the attachment of money deposited with banks, building societies and credit unions, and
| for other purposes. [Assented to 24 April 1987] |
See also Local Courts (Civil Claims) (Garnishee Proceedings) Amendment Act 1987.
2 Act No. 20
District Court (Garnishee Proceedings) Amendment 1987
BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:
Short title
This Act may be cited as the "District Court (Garnishee Proceedings) Amendment Act 1987".
1.
Commencement
2. (1) Sections 1 and 2 shall commence on the date of assent to this
Act.
(2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.
Amendment of Act No. 9, 1973
3. The District Court Act 1973 is amended in the manner set forth in
Schedule 1.
Savings and transitional provisions
(1) The amendments effected by this Act do not apply to or in respect
of a garnishee order made under section 97 of the District Court Act 1973
before the commencement of this Act.
4.
(2) Subject to subsection (1), the District Court Act 1973, as amended by this Act, applies to and in respect of a judgment debt arising before the commencement of this Act as well as to and in respect of a judgment debt arising after that commencement.
District Court (Garnishee Proceedings) Amendment 1987
SCHEDULE 1
(Sec. 3)
AMENDMENTS TO THE DISTRICT COURT ACT 1973
(1) Section 97 (Garnishee orders)—
(a) Section 97 (2) (a)—
Omit the paragraph, insert instead:
(a)
except in a case to which paragraph (b) or (c) applies, shall operate to attach in the hands of the garnishee, to the extent of the amount specified in the order, all debts which are due or accruing from the garnishee to the judgment debtor at the time of service of the order (whether or not they were so due or accruing at the time when the order was made);
(b) Section 97 (2) (b)— After "attach", insert ", to the extent of the amount specified in the order,".
(c) Section 97 (3)— Omit the subsection, insert instead:
(3) A garnishee order shall— (a)
specify the unpaid amount of the judgment debt owing to the judgment creditor; and
(b)
require the garnishee to pay, in accordance with this Act and the rules, the debt, wage or salary attached or so much of it as may be sufficient to satisfy that unpaid amount after deducting such amount (if any) as may be notified in writing to the garnishee by the judgment creditor or the registrar as having been paid or credited to the judgment creditor on account of that unpaid
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District Court (Garnishee Proceedings) Amendment 1987
SCHEDULE I—continued
AMENDMENTS TO THE DISTRICT COURT ACT 1973 —continued
(2) Sections 9 7 A - 9 7 E — After section 97, insert:
Affidavit that no debt due or accruing
97A. (1) A garnishee who believes that, at the time of service of the garnishee order, there was no debt due or accruing from the garnishee to the judgment debtor may serve on the judgment creditor an affidavit which is to that effect and contains a summary of the grounds on which that belief is based.
(2) A disclosure of any information in an affidavit served pursuant to subsection (1) shall not, if the disclosure was reasonable in the circumstances, subject the garnishee to any action, liability, claim or demand.
Time for payment by garnishee
97B. (1) Payment by a garnishee in accordance with a
garnishee order not expressed to be for the attachment of any wage
or salary shall be made—
(a)
within the period of 21 days after service of the order on the garnishee; or
(b)
in the case of any debt attached which is due for payment to the judgment debtor after the expiration of that period—not later than the date on which that debt is due for payment to the judgment debtor.
(2) Payment by a garnishee in accordance with a garnishee order expressed to be for the attachment of any wage or salary shall be made within the period of 14 days after the wage or salary is due for payment to the judgment debtor.
Notice required for certain attached debts accruing
97c. (1) Where a garnishee order not expressed to be for the attachment of any wage or salary attaches a debt which is due for payment to the judgment debtor after the expiration of the period of 21 days after service of the order on the garnishee, the garnishee shall, before the expiration of that period, serve on the judgment creditor a notice which complies with subsection (2).
District Court (Garnishee Proceedings) Amendment 1987
SCHEDULE I—continued
AMENDMENTS TO THE DISTRICT COURT ACT 1973 —continued
(2) A notice under subsection (1) in respect of a debt shall 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.
(3) A person shall not make in a notice served pursuant to subsection (1) a statement which, to the person's knowledge, is false.
Penalty: $200.
Garnishee's costs
97D. If a garnishee complies with a garnishee order (other than a garnishee order to which section 98 applies) within the time prescribed by section 97B and, where applicable, complies with section 97c (1)—
(a)
the garnishee may retain out of the debt attached for the garnishee's own use an amount not exceeding that prescribed by the rules; and
(b)
any amount so retained shall, for the purposes of the debt attached, be deemed to have been paid by the garnishee
to the judgment debtor.
Reduction of attached debt by Court
97E. If, after service of a garnishee order on the garnishee, the
garnishee acts with reasonable diligence for the purpose of giving effect to the attachment but nevertheless pays to the judgment debtor the whole or any part of the debt attached or otherwise deals with the debt attached so as to satisfy, as between the garnishee and the judgment debtor, the whole or any part of the debt attached, the Court may order that, for the purposes of the garnishee proceedings, the debt attached be reduced to the extent of the payment or satisfaction.
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District Court (Garnishee Proceedings) Amendment 1987
SCHEDULE I—continued
AMENDMENTS TO THE DISTRICT COURT ACT 1973 —continued
(3) Section 98 (Continuous operation of certain garnishee orders)—
Section 98 (3)—
After "attach", insert ", to the extent of the amount specified in the order,".
(4) Section 100 (Payment under certain garnishee orders)—
Section 100 (3)—
Omit "section 105 (2) be deemed to have been paid by the garnishee", insert instead "the wage or salary attached be deemed to have been paid by the garnishee to the judgment debtor".
(5) Section 102 (Procedure where garnishee order not complied with)—
Section 102 (3)—
Omit "any question of the amount of the debt, wage or salary (if any) attached by the garnishee order, and may give judgment for that amount, or for the unpaid balance of the judgment debt", insert instead "any question in dispute concerning the liability of the garnishee to pay the debt, wage or salary sought to be attached by the garnishee order and may give judgment for the amount of that debt, wage or salary or the unpaid amount of the judgment debt".
(6) Section 103—
Omit the section, insert instead: Bank, building society and credit union accounts
103. (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires—
"account" includes—
(a) a deposit account or withdrawable share account; and
(b)
any record of deposit or of subscription for withdrawable shares,
District Court (Garnishee Proceedings) Amendment 1987
SCHEDULE {—continued
AMENDMENTS TO THE DISTRICT COURT ACT 1973 —continued
but does not include an account or a record which is prescribed by the regulations as exempt from the operation of this section;
"bank" means—
(a)
a bank within the meaning of the Banking Act 1959 of the Commonwealth, as amended and in force for the time being; or
(b)
a person who carries on State banking within the meaning of section 51 (xiii) of the Constitution of the Commonwealth;
"building society" means—
(a)
a society registered under the Permanent Building Societies Act 1967;
(b)
a Starr-Bowkett society or a non-terminating building society registered under the Co-operation Act 1923;
(c)
a society mentioned in the Second Schedule to the Co- operation Act 1923; or
(d) a body in respect of which an exemption is in force—
(i) under section 35 of the Permanent Building Societies Act 1967; or
(ii) in the case of a Starr-Bowkett society or a non-
terminating building society, under section 61 of the Co-operation Act 1923;
"credit union" means—
(a)
a credit union registered under the Credit Union Act 1969; or
(b)
a body in respect of which an exemption is in force under section 28 of that Act;
"deposit-taking institution" means a bank, building society or
credit union.
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District Court (Garnishee Proceedings) Amendment 1987
SCHEDULE 1—continued
AMENDMENTS TO THE DISTRICT COURT ACT 1973 —continued
(2) For the purpose of determining whether an amount standing to the credit of a judgment debtor in an account in a deposit-taking institution is attachable as a debt due or accruing to the judgment debtor, the following conditions shall be disregarded:
(a) a condition that a demand must be made before any money or share is withdrawn; (b) a condition relating to the manner in which or the place at which any such demand is to be made; (c) a condition that a passbook, receipt or other document must be produced before any money or share is withdrawn; (d) a condition that notice is required before any money or share is withdrawn; (e) except in the case of an account in a Starr-Bowkett society, a condition that any money or share must not be withdrawn for any specified period; (f) a condition prescribing a minimum amount in respect of any withdrawal from the account; (g)
a condition that a minimum balance must be maintained in the account;
(h) a condition relating to the account prescribed by the regulations for the purposes of this subsection. (3) So much of the amount standing to the credit of a judgment debtor in a withdrawable share account in a building society or credit union as is the minimum amount that must be maintained in the account in order that the judgment debtor retains membership of the building society or credit union is not
District Court (Garnishee Proceedings) Amendment 1987
SCHEDULE 1—continued
AMENDMENTS TO THE DISTRICT COURT ACT 1973 —continued
(4) Where an amount standing to the credit of a judgment debtor in an account in a deposit-taking institution is attached, the garnishee order shall be deemed to operate as a notice of withdrawal or demand for payment under the contract between the garnishee and judgment debtor in respect of the account, and that notice or demand is, while the order remains in force, irrevocable and shall be deemed to have been received by the garnishee—
(a) on the date of service of the order; or
(b) where the judgment debtor is not entitled under the contract to give a notice of withdrawal or make a demand for payment on the date of service of the order—on the date on which the judgment debtor would, but for the order, have become so entitled. (5) Any charge on an amount standing to the credit of a judgment debtor in an account in a building society or credit union (being a charge created by an Act under which the building society or credit union is registered or regulated or by the rules of the building society or credit union) shall be disregarded for the purposes of a garnishee order, but nothing in the foregoing affects the rights of the building society or credit union to set off or appropriate the whole or any part of that amount.
(6) Where— (a)
before the expiration of the period of 21 days after service of a garnishee order on a deposit-taking institution with respect to an amount standing to the credit of a judgment debtor in an account, the garnishee pays to the registrar the debt attached to the extent of the attachment; and
(b)
one of the conditions applicable to the account is that a passbook must be produced before any money or share is withdrawn,
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District Court (Garnishee Proceedings) Amendment 1987
SCHEDULE 1—continued
AMENDMENTS TO THE DISTRICT COURT ACT 1973 —continued
the garnishee may, at the time of payment of that amount to the registrar, by instrument in writing signed by an officer of the deposit-taking institution, require the registrar to retain the amount so paid for any specified period not exceeding 2 months commencing on the date of that payment.
(7) Where—
(a)
a registrar is required under subsection (6) by a garnishee to retain an amount for a period specified under that subsection; and
(b)
the garnishee during that period makes an application for an order under this subsection on the ground that the garnishee has acted with reasonable diligence in relation to the garnishee order but nevertheless, because of the production of a current passbook relating to that amount or any part of that amount, has (whether during or before that period) paid to the judgment debtor the whole or any part of the debt attached or otherwise dealt with the debt attached so as to satisfy, as between the garnishee and the judgment debtor, the whole or any part of the debt attached,
the Court may, if it thinks fit, order the registrar to repay that
amount or any part of that amount to the garnishee.
(8) Where a registrar is required under subsection (6) by a
garnishee to retain an amount for a period specified under that
subsection, the registrar shall not pay that amount or any part of that amount to the judgment creditor— (a) until after—
(i) the garnishee, by instrument in writing signed by an officer of the deposit-taking institution, informs the registrar, or the registrar is otherwise satisfied, that a current passbook relating to that amount or any part of that amount has, during that period, come into the possession of the garnishee at the place of keeping of the account to the credit of which that amount was standing; or
District Court (Garnishee Proceedings) Amendment 1987
SCHEDULE 1—continued
AMENDMENTS TO THE DISTRICT COURT ACT 1973 —continued
(ii) the expiration of that period,
whichever first occurs; and
(b) unless the registrar is satisfied, on such information as is available to the registrar, that no application made during that period by the garnishee for an order under subsection (7) in relation to that amount or any part of that amount is still pending.
(9) If an amount referred to in subsection (8) or any part of such an amount is ordered to be repaid to the garnishee under subsection (7), the balance (if any) only is payable to the judgment creditor.
(10) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this section is required or permitted to be prescribed by the regulations.
(11) Regulations may be made under this section so as to apply differently according to such factors as may be specified in the regulations.
(7) Section 105 (Payment by garnishee)—
Section 105 (3)—
Omit "103 (5)", insert instead "103 (7)".
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