Small Debts Recovery Act (1881 No 39a) (NSW)

No. XXVII.

A n Act for the be t t e r recovery of J u d g m e n t

Deb t s	in	Dis t r ic t Courts and in Cour ts of
P e t t y Sessions.	[20th December,	1881.]

WHEREAS it is expedient that provision he made for the better Petty Sessions Be it therefore enacted by the Queen's Most Excellent recovery of Judgment Debts in District Courts and in Courts of 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 :•—

1. In construing this Act the term " Court" shall if not incon­

sistent with the context be taken to mean the District Court Judge in any proceeding in a District Court or the Police Magistrate in any proceeding in a Court of Petty Sessions and the "word"™"~officer'' shall if not inconsistent with the context be taken to mean the Registrar of the District Court or Court of Petty Sessions.
2. It shall be lawful for any creditor who has obtained a judg­ ment in any District Court or Court of Petty Sessions to apply to the Court in which lie has obtained such judgment for an order that the judgment debtor be orally examined as to whether any and what debts are owing to him and the Court may thereupon make an order for the examination of such judgment debtor and for the production of any books or documents and shall cause him to be orally examined touching the premises and every judgment debtor who shall refuse or neglect to obey such order shall be subject to all the penalties to which a witness duly subpoenaed to attend at such Court and- failing to appear at the time appointed would be subject.

3. I t shall be lawful for the Court upon the ex parte application

of any creditor who has obtained a judgment in that Court or in any other District Court or Court of Petty Sessions either before or after such oral examination as is provided in the last preceding section and upon affidavit by such judgment creditor or his attorney or agent stating that the judgment has been recovered and that it is still unsatisfied and to what amount and that any other person is indebted to the judgment debtor and resides within the jurisdiction of the Court to which such application is made to order that all debts due owing or accruing from such third person (hereinafter called the garnishee) to the judgment debtor shall be attached to answer the judgment debt and by the same or any subsequent order the Court may summon the garnishee to appear to show cause why he should not pay to the officer on behalf of the judgment creditor the debt due from him to the judgment debtor or so much thereof as may be sufficient to satisfy the judgment debt.

5. If the garnishee does not forthwith pay to the officer on
behalf of the judgment creditor the amount d\ie from him to the
judgment debtor or an amount equal to the judgment debt and does not

4. Service of an order on the garnishee that debts due owing or accruing to the judgment debtor shall be attached or notice to the garnishee of the making of such order shall attach in the hands of the garnishee all debts due owing or accruing from him to the judgment debtor.

not dispute the debt due or claimed to he due from him to the judgment debtor or if he does not appear upon summons then the Court may order execution to issue and it may be sued for accordingly without any other previous writ or process to levy the amount due from such garnishee in payment of the judgment debt or towards satisfaction of the same.

6. If the garnishee appears upon summons and disputes his liability the Court instead of making an order that execution shall issue may order the hearing of such summons to stand adjourned until some day to be appointed for that purpose and may direct that upon such adjourned hearing any question necessary for determining the liability of the garnishee be tried or determined and the order for such adjournment shall be served upon the garnishee and shall operate as a plaint entered against him to obtain payment of the sum claimed to be due by him to the judgment debtor.
7. The costs of any application for an attachment of debt and of any proceedings arising from or incidental to such application shall be in the discretion of the Court but where the garnishee shall pay all debts due owing or accruing from him to the judgment debtor or so much thereof as is sufficient to satisfy the judgment debt into Court five clear days before the return day of the summons he shall not be liable for any costs incurred by the judgment creditor.

8. Payment made by or execution levied upon the garnishee

under any proceeding herein provided shall be a valid discharge to him as i gainst the judgment debtor to the amount paid or levied although such proceeding may be set aside or the judgment reversed.

0. In proceedings to obtain an attachment of debts as herein

provided the Court may in its discretion refuse to interfere where from the smallness of the judgment debt or of the amount to be recovered or of the debt sought to be attached or otherwise the remedv sought would be inadequate worthless or vexatious and subject to any other provisions contained in this Act The costs of any application for an attachment of debt under this Act and of any proceeding arising from or incidental to such application shall be in the discretion of the Court.

10. In each District Court or Court of Petty Sessions presided

over by a Police Magistrate the officer shall keep a debt attachment book in which book entries shall be made of all attachments and pro­ ceedings thereon with names dates and statements of the amounts recovered and copies of any entries made therein may be taken by any person upon application to the officer and upon payment of the fee

provided.

11. The District Court Judges for the time being or any three

of them shall have power to make such general rules as they shall think fit for regulating the practice and proceedings of the District Courts in reference to this Act the fees to be allowed to barristers and attorneys and the expenses to be paid to witnesses and also to frame forms for every matter or proceeding under this Act and to alter or vary flic forms so made or those provided for by this Act and also to fix the Court fees payable in such District Courts for any proceeding under this Act and from time to time to alter or vary any such rules or forms and the rules so made shall not take effect until one month after the

publication thereof in the Gazette.

12. The Courts of Petty Sessions in each Police District shall

have power to make such rules as they shall think fit for regulating the practice and proceedings of each of such Courts under this Act and for the fixing of Court fees payable thereunder but such rules shall have no effect until approved of by Ucr Majesty's Attorney General for the time being.

13. The several Courts of Petty Sessions in the Colony shall with the approval of Her Majesty's Attorney General for the timebeing have power from time to time to fix the amount of the fees payable to every bailiff under such Courts notwithstanding the provisions of the

Act tenth Victoria number ten.

14. The several forms in the Schedules to this Act or as near thereto as the nature of the case will permit shall be used in all pro­ ceedings in the District Courts and Courts of Petty Sessions until the same shall be altered as is hereinbefore provided.

15. This Act may be cited as the " Small Debts Recovery Act."

SCHEDULES.

S C H E D U L E A.

Order for examination of Judgment Debtor.

No.

In the District Court of

holden at

or in proceedings in Petty Sessions.

In the Court of Petty Sessions for the

District of

Between Judgment Creditor and Judgment Debtor.

Upon the application of the abovenamed judgment creditor it is ordered that the above-

named judgment debtor attend this Court on the day of 188

at the th hour of the clock in the noon and be examined as to whether any and what debts are owing to him and that the said judgment debtor produce all necessary books and documents at the time of the examination.

Dated this day of 188

B y the Court.
Registrar.

To the abovenamed judgment debtor.

S C H E D U L E B .

Affidavit to ground Garnishee order.

No.

In the District Court of

holden at

(Seal.) or in proceedings in Petty Sessions.

I n the Court of Petty Sessions for the

District of

Between Judgment Creditor and Judgment Debtor.

I of the abovenamed judgment creditor [or attorney or agent for the

abovenamed judgment creditor] make oath and say—

(1) That I [or the abovenamed judgment creditor] on the day of

last past recovered judgment in the District Court holden at [or in the

Court of Petty Sessions at ] against the abovenamed judgment debtor

for the sum of £ and costs.

(2 ) That the said judgment is still wholly unsatisfied [or is still unsatisfied to the

extent of the sum of £

(3) That E . E . of [state description] is indebted to the said judgment debtor in the

sum of £

(4) That the said E . F . resides within the jurisdiction of this Court.

Sworn at this day of 188 before me

This affidavit is filed on behalf of the abovenamed judgment creditor.

S C H E D U L E C.

S C H E D U L E C.

Garnishee order attaching Debt.

N o .

I n the Dis t r ic t Cour t of }

holden a t

(Seal.)

or in proceedings in Petty Sessions

I n t he Cour t of P e t t y Sessions for t he }

Dis t r ic t of

Be tween J u d g m e n t Credi tor and J u d g m e n t Deb to r and Garnishee.

U P O N hear ing and reading the affidavit of filed t he day of

188           and upon

I t is ordered t h a t all debts owing and accruing due from the abovenamed garnishee t o t h e abovenamed j u d g m e n t debtor be a t tached to answer a j u d g m e n t recovered against

t he said j u d g m e n t debtor by t he abovenamed j u d g m e n t credi tor in t he Dis t r ic t Cour t

of holden a t [or in t he Cour t of P e t t y Sessions in t he Dis t r ic t of

on t he day of 188 for t he sum of £ s. d. on which j u d g m e n t the

sum of £ s. d. remains due and unpaid .

(And i t is f u r the r ordered t h a t t h e said garnishee a t t end this Cour t on t he

day of 188 a t of t he clock in the noon to show cause why ho should no t pay into Cour t t he debt due from him to t h e said j u d g m e n t debtor or so much

thereof	as may be sufficient to satisfy t he said j u d g m e n t )
D a t e d this day of 188 .

By the Cour t .

Begis t ra r .

To t h e abovenamed garnishee.

(To t h e abovenamed j u d g m e n t debtor . )

NOTE.—If the garnishee pay the amount of debt or so much thereof as will satisfy the judgment debt into Court five clear days before the hearing of this summons he will incur no costs. If the garnishee " doe8" not " appear" and dispute the debt the Court may order execution to issue against him.

S C H E D U L E D .

Judgment against Garnishee.

N o .

I n t he Dis t r ic t Cour t }

holden a t

(Seal . )

or in proceedings in Petty Sessions.

I n t he C o u r t of P e t t y Sessions for t he }

Dis t r ic t of

Be tween A . B . J u d g m e n t Credi tor and C D . J u d g m e n t D e b t o r and E . P . Garnishee .

I T is ordered t h a t t he said A . B . t h e abovenamed j u d g m e n t credi tor do recover agains t

t h e said E . P . the abovenamed garnishee the sum of £ [insert the amount of the judgment debt or so much thereof as the debts amount to when the same are less than the

judgment dchf] and £ for costs amoun t ing a l together to the sum of £

and it is fur ther ordered t h a t t he garnishee do pay the same to t he Beg i s t r a r of the

C o u r t on t he	day of	188	[or by ins ta lments of	for	every
days t he	first	i n s t a lmen t to be paid on t h e	day of	188	]

[ I n case defaul t be made in paymen t of any one of such ins ta lments and execution

issue i t shall be for t he whole of the above amoun t t h e n remaining due.]

D a t e d this day of 188 .

S C H E D U L E E .

Execution against Garnishee.

N o . Folio in Ledger .

N o .	of "Warrant .
I n	t h e Dis t r i c t Cour t of }

holden a t

(Seal . )

or in proceedings in Petty Sessions.

I n the Cour t of P e t t y Sessions for t he }

Distr ict of

Be tween A .B . J u d g m e n t	Creditor	and	C D .	J u d g m e n t	Deb to r	and E . P .	Garnishee .
W H E R E A S	on t h e	day of	188	the	j u d g m e n t credi tor	obtained	a

judgment in this Cour t agains t the garnishee for t he sum of £	being	[portion
of]	t he amoun t due by him to t he j u d g m e n t	debtor and it was the reupon ordered t h a t

t he

t he garnishee should pay the sum to t he Reg i s t r a r on t he day of

188 [or by ins ta lments of for every days.]

A n d whereas default has been made in paymen t according to t he said order These a re therefore to requ i re and order you for thwi th to make and levy by distress and sale of t he goods and chat te ls of t he said E . F . wheresoever they may be found wi thin the distr ict of this Cour t (except t he wear ing appare l and bedding of him and his family and the tools and implements of his t r ade if any to t he value of ten pounds) t he sum stated a t t h e foot of th is war ran t be ing the amoun t due t o t he said A .B . u n d e r th is o rder inc luding the costs of this execution and also to seize and t ake any money or bank-no tes cheques bills of exchange promissory-notes bonds specialties or securi t ies for money of t h e defendant which may t h e r e be found or such pa r t or so much thereof as may bo sufficient to satisfy this execut ion and the cost of making and execut ing the same and to pay wha t you shall have so levied to the Regis t rar of this Cour t and to m a k e r e t u r n of wha t you have done u n d e r this war ran t immediately upon t h e execut ion thereof.

Given u n d e r t he seal of this Cour t th is day of 188 .

B y the C o u r t

Reg i s t r a r ,

To the Bailiff of t he said Cour t and o thers t he Ass i s t an t Bailiffs thereof.

Amount for which judgment ivas obtained.

£ s. d.

A m o u n t	of	J u d g m e n t . . .
Costs	. . .

Mi leage

Pa id into Cour t

Tota l amoun t to be levied . . . £

N O T I C E . — T h e goods and cha t te l s a re n o t to be sold un t i l af ter t he end of five

days nex t following the day on which they were seized unless they be of a per ishable

n a t u r e or a t the reques t of the said E . F .

Appl ica t ion was made to t he Regis t rar for the w a r r a n t a t minu tes pas t

t h e h o u r of in the noon of the day of 188 .

S C H E D U L E	F .
Order for	Trial.

N o .

I n t he Dis t r ic t Court }

holden	a t
(Seal.)

or in proceedings in Petty Sessions.

I n t he Cour t of P e t t y Sessions }

in t h e Dis t r ic t of

Be tween A . B . J u d g m e n t Credi tor and C D . J u d g m e n t Deb to r and E . F . Garnishee .

W H E R E A S the J u d g m e n t Credi tor a t a Cour t holden a t on t he

day of 188 obtained a j u d g m e n t against C D . of for t h e

sum of £ and costs and which j u d g m e n t now remains unsatisfied A n d whereas

t he j u d g m e n t credi tor having filed an affidavit s ta t ing t h a t t he said E . F . was indebted to t he said C D . a summons was issued call ing upon t h e garnishee to show cause why h e should no t pay into Cour t t he amoun t so due or so much thereof as might b e sufficient to satisfy the j udgmen t deb t and t h e said garnishee appeared upon t h e said summons

a n d disputed his liability I t is ordered t h a t t he hear ing of t h e said summons be

adjourned unt i l t h e day of 188 a t t he hour of in t he

noon and t h a t upon such ad journment t he liability of t he garnishee to pay to t he judg­ m e n t debtor the sum of £ according to t h e par t i cu la rs h e r e u n t o annexed be t r ied

and de te rmined [or inser t any special direct ion as to ques t ion to be t r i e d ] .

D a t e d this day of 188

Registrar .

£ s. d.

D e b t or claim .. .

Cost of s u m m o n s

A t t o r n e y ' s costs

£

No. XXVIII .