Service of Equitable Process Act of 1897 (NSW)

Act No. 11, 1897.

An Act to amend and declare the law relating to the service of process in the Supreme Court in its Equitable Jurisdiction; and for other purposes connected therewith. [14:th October,

1897.]

Assembly of New South Wales in Parliament assembled, and by the the advice and consent of the Legislative Council and Legislative authority of the same, as follows :— BE it enacted by the Queen's Most Excellent Majesty, by and with

judgment, or incumbrance thereon ; or

1. This Act may be cited as the " Service of Equitable Process

Act of 1897."

2. The Act thirteenth Victoria number tbirty-one, intituled " An Act to effectuate the service of Process issuing from the Supreme Court in its Equitable Jurisdiction,'" is hereby repealed.

3. The Supreme Court in its Equitable Jurisdiction, or a Judge

in Equity of the said Court, may allow any equitable process in any
suit or proceeding to be served out of the jurisdiction whenever—-

(a) the suit or proceeding, wholly or in part, concerns lands or hereditaments within the jurisdiction, or any charge, lien,

(b)	any Act , deed, will , contrac t , obligation, or l iabil i ty affecting land or hered i taments s i tua te w i th in t he jur isdict ion is sought to be construed, rectified, set aside, or enforced in t h e suit or
p roceed ing ; or
(c)	the relief sought in any suit or proceeding in respect of the person requi red to be served, wholly or in par t , concerns any money invested in any Government stocks or funds, or in the stocks or shares of any corporat ion, company, or society registered wi th in t h e jur isdic t ion, or deposited wi th any such corporat ion, company, or society, or t h e interests , dividends, or produce of such money ; or
(d)	any relief is sought agains t any person domiciled or ordinar i ly
resident wi th in t he jur isdict ion ; or
(e)	t he sui t or proceeding is for t h e adminis t ra t ion of t he estate of any deceased person who a t t he t ime of his death was domiciled wi th in t h e jur isdict ion, or for t h e execut ion (as to
p rope r ty s i tua te within t h e jurisdict ion) of t h e t rus t s of any

wr i t t en i n s t rumen t , of which t h e person to be served is a t rus tee , which ough t to be executed according to t h e law of N e w Sou th Wales , or for t h e appo in tmen t or r emova l of any

t ru s t ee of such t rus t s ; or
( f )	the suit is founded on any breach or al leged breach wi th in t he jurisdict ion of any contract wherever made which (in respect of t he m a t t e r as to which relief is sought) ough t according to t h e t e rms thereof to be performed wi th in t he jur isdict ion ; or
(g)	any in junct ion is sought as to a n y t h i n g to be done or against t he doing of any act wi th in t h e jurisdict ion, whe the r damages are or a re not also sought in respect thereof ; or
(h)	any person out of the jurisdiction is a necessary or proper pa r ty to a suit or proceeding properly b r o u g h t agains t some
other person du ly served wi th in t he jur isd ic t ion ; or

(i) relief is sought agains t a person out of t h e jur isdic t ion in respect of his membersh ip or al leged membersh ip in a n y

c o m p a n y or society whose pr incipal place of regis t ra t ion is

wi th in t h e jur isdict ion.

4. (I) W h e n leave is given to serve any s t a t emen t of c laim

u p o n a person out of the jur isdict ion, and such person is ne i ther a Br i t i sh subject nor in any Bri t ish possession, t h e said s t a t emen t of claim shall be endorsed in t he form or to the effect of t he form set ou t in Schedule A hereto instead of in t he form set ou t in t h e F i r s t Schedule to t he E q u i t y Ac t of 1880.

(II) E v e r y other s t a t emen t of claim wh ich is served upon

any defendant , whe the r wi th in or out of t h e jur isdict ion, shal l be endorsed in t he form or to t h e effect of t he form set ou t in Schedule B here to ins tead of in t he form set ou t in t h e First Schedule to t h e said

(III) Al l s ta tements of claim which have heretofore been
endorsed in t h e form or to t h e effect of t he form set ou t in Schedule B

to th i s A c t shall he deemed to have been properly endorsed, a n y t h i n g

in the said E q u i t y A c t of 1880 to the cont rary no twi ths tand ing .

5. (I) If it be made to appear to t he Supreme Cour t in its

Equ i t ab l e Jur i sd ic t ion , or to a J u d g e in E q u i t y of t he said Court , t h a t

any p a r t y is from any cause, other t h a n the mere fact t h a t t he person to be served is ou t of t h e jur isdic t ion unab le to effect reasonably p r o m p t service, the said Cour t or J u d g e m a y m a k e such order as m a y seem jus t , d i rec t ing subs t i tu ted or other service, or d i rec t ing not ice by adver t i sement or otherwise to be given instead of service, whe the r such p a r t y as aforesaid is ou t of the jur isdict ion or not .

(II) W h e r e t he person required to be served is ou t of the jur isdict ion, t h e said Cour t or J u d g e shal l no t m a k e a n order di rect ing subs t i tu ted or o ther service or the giving of notice as aforesaid, except in cases where t he said Cour t or J u d g e has power to allow service out

of	t h e	jur isdict ion.
6. (I) The J u d g e s of the Supreme Cour t or any th ree of t h e m

(of whom t h e Chief Jus t i ce and the Chief J u d g e in E q u i t y shall be

two) m a y m a k e such rules as they shall t h i n k fit—•

(a) for r egu la t ing service or not ice in l ieu of service wi th in t h e

jur isdict ion of all equi table process, no twi ths tand ing a n y t h i n g in t he said E q u i t y Ac t of 1880, or in any other Act of

P a r l i a m e n t con ta ined ; and

(b) for r egu la t i ng applicat ions to t he Cour t or J u d g e under th is

A c t ;	and
(c)	general ly for t he purpose of car ry ing th is Ac t in to effect.
(II)	Al l rules made under this Act shall immedia te ly after t he

m a k i n g thereof be laid before bo th Houses of Pa r l i amen t if t hen si t t ing,

or if not , wi th in t en days after t h e nex t s i t t ing thereof, and if e i ther of t h e said Houses do, by any resolut ion passed w i th in th i r ty days after such rules have been so laid before it resolve t h a t any such rule or any par t thereof ough t not to cont inue in force, t h e n such ru le or pa r t shall

immediate ly cease to be b ind ing . 7. (I) I n the const ruct ion of th is A c t the words ' ' e q u i t a b l e

process" inc lude s t a t emen t of claim, peti t ion, motion, summons , decree, order, and general ly any other document of which service is r equ i red to be effectcd in any suit or proceeding before t he Supreme Cour t in i ts E q u i t a b l e Jur i sd ic t ion or before t h e Mas te r in E q u i t y or Mas te r in L u n a c y .

(II) For t he purposes of this A c t the E q u i t a b l e Ju r i sd ic t ion

of t h e S u p r e m e Court shall be deemed to include every jur isdict ion of t h e said Cour t in Equ i ty , whe the r s t a tu to ry or otherwise, and also t h e

jur isd ic t ion of t h e said Cour t in m a t t e r s of I n f a n c y and Lunacy .

S C H E D U L E S .

S C H E D U L E S .

SCHEDULE A.

Notice to be endorsed on statement of claim the day of , in the year one

thousand eight hundred and ninety-

To the within-named defendant, A.B.—

TAKE notice that the within-named plaintiff E.F. [_or, where there is more than one plaintiff, plaintiffs E.F. and CD. ] has commenced a suit against you in the Supreme Court of New South Wales in its Equitable Jurisdiction by the within statement of claim, and you arc required within days after the service hereof on you, exclusive of the day of such service, to cause an appearance to bo entered for you in the Equity Office of the Supremo Court of New South Wales to the within statement of claim, and you are also required at the same time of entering your appearance to file in the said Equity Office a memorandum stating in effect that you dispute or admit, in whole or in part, the plaintiff's claim, or submit to such decree or order as the said Court may think fit to make, or disclaim all right, title, or interest in the subject matter of the within statement of claim. And if you admit the plaintiff's claim, you may, on the Tuesday following the eighth day after such appearance, or so soon thereafter as you can be heard, attend, either personally or by counsel or solicitor, before the Judge sitting in
chambers, at Chancery-square, in the city of Sydney, in the Colony of New South Wales, at ten of the clock in the forenoon, and submit to such decree as is within
prayed or shall be just.
NOTE.—Appearances are to be entered in the Equ i ty Office of the Supreme Court, of New South Wales , at Chancery-square aforesaid, and if you neglect to enter an appearance or to file a memorandum as above-mentioned, or personally or by counsel or solicitor to attend at the place and time above- mentioned, you will be subject to such order as the said Court may think fit to make in your absence.

(Signed) E. E., Plaintiff, or, Y.Z., of

Solicitor for the Plaintiff.

SCHEDULE B.

VICTORIA R.

To the within-named defendant, A.B. [or where there is more than one defendant,

defendants A.B. and CD.]

Greeting:—

W E command you [and every of you where there is more than one defendant] that within
days after the service hereof on you, exclusive of the day of such service,
you cause an appearance to be entered for you in the Equity Office of our Supreme
Court to the within statement of claim. And that you do at the same time of entering

your appearance, file in the Equity Office a memorandum stating in effect that you

dispute or admit, in whole or in part, the plaintiff's claim, or submit to such decree or

order as the Court may think fit to make, or disclaim all right, title, or interest in the

subject matter of the within statement of claim. And if you admit the plaintiff's claim, you may, on the Tuesday following the eighth day after such appearance, or so soon after as you can be heard, attend, either personally or by counsel or solicitor, before the Judge sitting in Chambers, in Chancery-square, in the city of Sydney, at ten of the clock in the forenoon, and submit to such decree as is within prayed or shall bo just.

Witness the Honorable A.B., the Chief Judge in Equity, at Sydney, the

day of , in the year of our Lord one thousand eight hundred

and ninety- , and in the year of our reign.

NOTE.—Appearances are to be entered in Equi ty Office of the Supreme Court, at Chancery-square aforesaid, and if you neglect to enter your appearance or to file a memorandum as above-mentioned, or personally or by counsel or solicitor to at tend at the place and time above-mentioned, you will be subject to such order as the Court may think fit to make in your absence.

Act