District Courts Act Amendment Act of 1884 No 24a (NSW)

No. VII.

An Act to further amend the "District Courts

Act of 1858." [21st July, 1884]

WH E R E A S t h e " Dis t r ic t Courts A c t of 1858 " Be it therefore enac ted

it is expedient to fu r the r amend in cer tain par t icu la rs

b y t h e Queen ' s Mos t Exce l l en t Majesty b y a n d wi th t he advice and

consent of t h e Legislat ive Council and Legis la t ive Assembly of N e w

Sou th AVales in P a r l i a m e n t assembled and by t h e au thor i ty of t he

same as follows :—

1. I n all act ions commenced in any Dis t r ic t Cour t for a debt or l iquidated demand in money wi th or w i thou t interest ar is ing upon a con t rac t express or implied t he plaintiff shall be a t l iber ty u p o n filing his p la in t to cause to be issued a summons in t he form or to the effect given in Schedule A to th i s A c t a n d if such summons together w i th a s t a t e m e n t of t h e par t icu la rs of plaintiff 's c la im shal l be personal ly served on t h e defendant and the defendant shal l no t wi th in e ight days if resident w i t h i n t he distr ict from which such summons issued or if n o t so res ident t h e n wi th in t e n days after such service inclusive of t h e day of such service give notice in wr i t i ng signed by himself or his a t torney to t he Reg is t ra r of his in ten t ion to defend the act ion t h e plaintiff a t any t ime wi th in th ree mon ths after t he expi ra t ion of such t ime for g iv ing notice of defence as aforesaid upon filing an affidavit of due service of such s u m m o n s or of a n order for leave to proceed as if personal service had been effected together wi th a n accoun t of w h a t is j u s t l y due to h i m verified b y the oath of such plaintiff his a t to rney or

agen t m a y have j u d g m e n t entered u p aga ins t t h e defendant for

t h e a m o u n t of his c laim toge ther w i th in teres t to t he date of j u d g m e n t and a sum for costs t o be fixed by the J u d g e unless t h e plaintiff c la im m o r e t h a n such fixed sum in which case the costs shall be t axed b y the Reg i s t r a r ex-parte Provided a lways t h a t t he defendant m a y

give notice of his in ten t ion to defend a t any t ime before	j u d g m e n t
entered u p aga ins t h i m as aforesaid.

2. Such j u d g m e n t shall be for p a y m e n t fo r thwi th or a t such

t ime or t imes and by such ins ta lments if any as t h e plaintiff or his a t to rney shall in wr i t ing have consented to t ake a t t he t ime of en t ry of the p la in t or of t he j u d g m e n t and i t shal l be lawful for t he plaintiff in defaul t of p a y m e n t in accordance w i t h such j u d g m e n t to issue execut ion for thwi th for t h e full a m o u n t thereof and in any case in Avhich j u d g m e n t has been entered u p for p a y m e n t by ins t a lmen t s

execut ion shal l be had for t he whole a m o u n t due upon	t h e	j u d g m e n t
if default	be m a d e in p a y m e n t of one such	ins ta lment .

3 . W h e r e t he defendant shal l have given notice of defence t he Reg i s t r a r shall u p o n the receipt thereof cause a summons in t he u sua l form to be issued a n d served u p o n the defendant a t such t ime and in such m a n n e r as is provided by the pr incipal A c t A n d the proceedings subsequen t to t h e issue thereof shal l in all respects be t h e same as if such summons had been issued in the first ins tance A n d the R e g i s t r a r shall fo r thwi th communica te not ice of such defence and of the t ime and place a t which the act ion is in tended to be t r ied to the plaintiff or h is a t t o rney by post or by leaving t h e same at his residence or usua l place of business.

4. W h e r e t h e defendant has neglected to give not ice of defence
the J u d g e u p o n a n affidavit disclosing a defence upon the mer i t s and

satisfactori ly exp la in ing the neglec t shall let in t he defendant to defend

upon such t e rms as t he J u d g e m a y t h i n k fit.

5. W h e r e personal service cannot be effected and the J u d g e or

Reg i s t r a r is satisfied by affidavit t h a t reasonable efforts have been m a d e to effect such service and ei ther t ha t the summons lias come to t he knowledge of t he defendant or t h a t he wilfully evades service of the same or t h a t t he same has been served in t he m a n n e r directed by the Dis t r ic t Cour t I iu les in respect of an ordinary summons it shall be lawful for t he J u d g e or Reg is t ra r to order t h a t t he plaintiff be a t l iber ty to proceed as if personal service had been effected subject to

such condit ions as to t he J u d g e or Reg i s t r a r m a y seem fit.

0. Al l ma t t e r s which a t present are only t he subject of cross

act ion or m a y be made the subject of a cross act ion be tween the part ies shal l hereaf ter be pleadable by way of set-off as a t present in t he Supreme Cour t provided the l ike notice thereof be given as is requi red in respect of t he special defences enumera ted in section lifly- nine of t he Pr incipal Ac t .

7. I t shall be lawful for the defendant or t he plaintiff in replevin in a n y cause in wh ich if j u d g m e n t were obtained he would be entit led to relief against such j u d g m e n t on equi tab le grounds to rely upon t h e facts wh ich ent i t led h i m to such relief by Avay of defence provided not ice of such facts w i th t h e words " for defence on equi table grounds " shal l be given in l ike m a n n e r and t ime as is required in respect of t h e special defences enumera ted in section fifty-nine of the Pr inc ipa l A c t and the plaintiff or defendant as the case m a y be may reply in answer to any such plea facts which avoid t he same on

equi table grounds .

8. No defendant served wi th a summons in the form or to t h e effect given in Schedule A to th i s A c t shal l be allowed to set u p ei ther of t h e defences in t he two previous sections hereof or any of the defences enumera ted in section fifty-nine of t he P r inc ipa l A c t wi thout the consent of t he plaintiff unless t h e defendant shall have given notice thereof a t t he t ime of filing not ice of his in ten t ion to defend the action not ice of which shall be communica ted by t h e Reg is t ra r to t he plaintiff at the t ime and in t he m a n n e r notice of defence as aforesaid is communica ted .

9.    I n all act ions where t he a m o u n t claimed shall exceed twen ty

pounds the J u d g e m a y a t any t ime order t h a t a j u r y be summoned to t ry t he action a n d the plaintiff shall be bound to proceed in the same m a n n e r as if he had requi red t h e ac t ion to be so t r ied and in al l act ions where t he a m o u n t c la imed does n o t exceed twen ty pounds it

shall be lawful for t he J u d g e on the appl icat ion of c i ther of t he	part ies
ex-parte or otherwise if made a t least five clear days before the day

named in t he summons for the hea r ing of such act ion to order t h a t a j u r y be summoned to t ry t he act ion and t h e pa r ty m a k i n g such applica­

t ion shall be bound to proceed in t he same m a n n e r as if the a m o u n t

claimed had exceeded twen ty pounds and he had requ i red t he act ion to be t r ied by a j u r y and it shall also be lawful in such act ions for t he plaintiff and defendant to requi re a j u r y to be summoned to t ry t h e action upon giving the Regis t ra r or leaving a t his office a t least live clear days before the day named in t he summons for t h e hear ing of such action a not ice thereof signed by both plaintiff and defendant or by the i r respect ive a t torneys and t h e plaintiff shal l be bound to proceed

in t h e same m a n n e r as if the a m o u n t c laimed had exceeded twen tv	t-
pounds and had required t he act ion to be t r ied by a j u ry .

10. I t shall be lawful for the J u d g e a t any t ime dur ing the s i t t ing of t h e Cour t a t which a cause has been s t ruck ou t p u r s u a n t to section s ix ty- three of the Pr incipal Ac t to order t he said cause to be restored to t he cause list upon such te rms (if any) as to p a y m e n t of costs g iv ing securi ty for costs or such other t e rms as he may t h i n k lit whereupon the same shall be proceeded wi th as if t he plaintiff had

du ly

duly appeared at the time and place named for such appearance or at
the continuation or adjournment of the Court or cause for which the

summons had been issued.

11. The term " Principal Act " shall mean the " District Courts

Act of 1858" and this Act may be cited as the " District Courts Act

Amendment Act of 1881."

S C H E D U L E A.

Summons to obtain judgment by default on personal service.

In the [title of Court issuing summons].

No. [of plaint].

Between A .B . [address and description of plaintiff] plaintiff and C D . [address and

description of defendant] defendant.

T A K E notice that unless within days after service of this summons on you

inclusive of the day of such service you return to the Registrar of this Court at [place
of office] the notice given below dated and signed by yourself or your attorney you will

£ s. d. not afterwards be allowed to make any defence to the claim which the plaintiff makes on

Claim

Fee for plaint ..	you as per margin the particulars of which are hereunto annexed but the plaintiff may
Attorney's costs	proceed to judgment and execution without giving any further notice I f you return
Total amount of	SUCH notice to the Registrar within the time specified a summons will be issued notifying
debt and costs	the time and place upon which the action will be tried.

Dated this day of A.D. 188 .

Registrar of the Court.

(Seal of Court.)

Notice of intention to defend or to object to the jurisdiction of the Court.

In the [title of Court].

No. [of plaint].

Between A.B. Plaintiff and C D . Defendant.

T A K E notice that I intend to defend this action [or to object to the jurisdiction of the

Court] and to rely upon the following grounds of special defence namely :—

[Here enumerate grounds of special defence.]

Dated this day of 188 .

C D . Defendant.

(To be endorsed on Summons.)

I f you pay the debt and costs as per margin on the other side into the Registrar's office
within the time specified for filing notice of intention to defend and without returning

such notice you will avoid further costs.

I f you confess the plaintiff's claim you should sign and deliver your confession

to the Registrar of the Court within the like time You and the plaintiff may agree as to the amount due and mode of payment and may within the time specified for filing
notice of intention to defend sign a memorandum of such agreement at the Registrar's
office or before an attorney.

I f you admit a part only of the claim you must return the notice of intention to defend within the time specified on the summons and you may by paying into the Registrar's office at the same time the amount so admitted together with costs propor­ tionate to the amount you pay in avoid further costs unless the plaintiff at the trial shall prove a claim against you exceeding the sum so paid.

I f you intend to rely on a set-off infancy the Statute of Frauds coverture any

statute of limitations or discharge under any statute relating to bankrupts or under any

Act for the relief of insolvent debtors or a plea of justification or of cross action or of

an equitable defence you must in addition to the notice of intention to defend at the same time give notice of such special defence to the Registrar and you must deliver to the Registrar as many copies of such notice as there are plaintiffs and an additional copy for the use of the Court I f your defence be a set-off you must with each notice

thereof deliver to the Registrar a statement of the particulars thereof I f your defence

be a tender you must pay into Court before or at the hearing the amount tendered.

No. VIII.