Small Debts Recovery (Amendment) Act 1933 (NSW)

Small Debts Recovery (Amendment) Act. 129

SMAI.L DEBTS RECOVERY

(AMENDMENT) ACT.

Act No. 14, 1933.

An Act to enlarge the jnrisdiction of Courts of

Petty Sessions in certain cases; and for this	*— '
and certain other purposes to amend the Small Debts Recovery Act, 1912, and certain other A cts; and for purposes connected therewith, [Assented to, 23rd October, 1933.]

"i >E it en.actcd by tlie King’s Jlost Excellent Majesty, J 3 by and with the advice ajid consent of tlie Legis- lativ(! ConiKnl and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows : —

1 . (1) This Act may be cited as the “ Small Debts Short

Recovery {Amendment) Act, 1933,” and shall be read and construed with the Small Debts Recovery Act, 1912, as amended by the Bills of Sale (Amendment) Act, 1919, and the Small Debts Recovery (Amendment) Act, 1922.

(2) The Small Debts Recovery Act, 1912, as so amended, is in this Act referred to as the Principal Act.

(3) The Principal Act as amended by this Act

may be cited as the Small Debts Reeox'ci'v Act, 1912-1933.

.\nicudm(;nt of

2 , (1) The Principal Act is amended—■

Act No. 33>

1012.

(a)

by omitting from subsection two of section seven Section 7

the words “ sitting in some place appointed in ‘P \ _

that behalf by the Governor” ;

(b)

by omitting from the same subsection the words, “ under subsection one (a),” and by inserting in lien thereof the words “ under paragraph (a) or paragraph (c) of subsection one.”

(2)

130                  Small Debts Recovery (Amendment) Act.

Ho, 14., 1933.

(2) The PriiK-ipal Act is anieiuled by inserting

Hew section

7a.	next after section seven the following new section:—
•where

Jurisdiction 7 a . (1) A court of petty sessions shall have

defendant	jurisdiction as provitled in this section, not with*
outside tlie
Btate.	standing that the defendant is not within New South
ef. 1924,	Wales, if the defendant carries on business or usually
Ko. 42, s, 10.	reside.s in any other State or part of the Common­ wealth within fifty miles of the houndary of the dis­ trict for wliich the court is held.
(2) Such jurisdiction shall extend only to the following cases, that is to say—

(a)	where the debt sued for was contracted, or the liability for damages arose, within the district for which the court is held; or
(b)	where the defendant has given an engage­ ment or promise in writing to pay any debt or sum at a particular place specified, and such place is within the district for which the court is held.

(3) In any case coming within this section the provisions of any Act of the Parliament of the Commonwealth for tlie time being in force applying to such case shall lie complied with,

(4) Nothing in this section shall authorise the service outside New South Wales of any default summons.

(:)) This section applies whether the defen­ dant has or has not ever been resident or carried on business in New South Wales.

(0) This section ap]ilics whether the cause of

action arose before or after the commencement of the Small Debts Recovery (Amendment) Act, 1933,

(7) In this section “ defendant ” means, where there are more than one, any defendant not within New South Wales,

Section 11. (3) The Principal Act is amended by omitting (4) In respect of any contract for the sale of any goods unless the buyer has actually accepted part of the goods so sold and actually received the same or given something in earnest to bind the contract

(Limitation	]>aragrapli four of section eleven and by inserting in
of jurisdic­
tion.)	lien thereof the following snhseetioii:—

Small Debts Recovery (Amendment) Act. 131

or m part payment or some note or memo rand um	__
of the eon tract lias heoii made and si^ed by the jtarty sought to be charged by such contract or liis agent in that behalf.

(4) The Principal Act is amended by inserting at Soctiou 13,

the end of section tivelv*; the -words—	{Acuonsnot
to 1)0 sp lit)

Provided that any jilaintiff having a cause of action for more than the amount for which a plaint may he entered under this Act may abandon the excess, -wliieb abandonment shall be stated upon the plaint, and thereupon the plaintiff shall, on jti'oving his case, recovei- to an amount not exceeding tile amount for wliieli a plaint may be so entered, and judgment upon such plaint shall be in full dis­ charge of all demands in respect of such cause of action, and entry of the judgment shall be made accordingly.

(5) The Principal Act is amended by inserting NtwsecUon

after section twelve the following new section:—■

1-A. (1) The defendant in an action in any court So;; off.

may, upon the pi’escribed notice thereof being given, plead by way of set off any debt or demand against the plaintilT in respect of which the defendant may institute an action in the same court against tlie plaintiff wliether such debt or demand sound in damages or not and whether it arises out of the same subject-matter as the claim of the plaintiff or not:

Provided that where a defendant has a debt or demand in respect of wliich he could institute an action in such court if the amount thereof -ivere not more than that for which a plaint may be entered in that coni't tlie defendant may abandon the excess, which abandon iiieiit siiall be stated upon the prescribed notice, and may plead by way of set off such debt or demand to an amount not exceeding that for which a iilaint may be entered as aforesaid.

(-) No set off shall be ]>1 ended under this section unless the iireseribed notice contains or lias annexed to it shortly and in substance the cause of action and the items constituting the particulars of

claim

132                  Small Debts Recovery (Amendment) Act.

Ho. 14,1933.	claim, and where the grounds of defence or notice thereof are required to be verified by afiidavit unless there is filed with such fireseiibed notice an affidavit by tlie defendant or his attorney that such gmunds are true in substance and in fact.
(3) No debt or demand shall he pleaded by way of set off unless it is owing to or enforceable by all the defendants if there are more than one, or is due from or enforceable against all the plaintiffs if there are more than one,
{4-} More than one debt or demand may be pleaded by way of set off in the same action.
(5) In eveiy" action under this Act in which the defendant pleads by way of sot off any debt or demand against the plaintiff, the defendant shall be entitled to recover in such action the amount, if any, by wiiich the debt or demand so set off is found to exceed the debt or demand claimed and proved by the plaintiff, and shall have judgment and execu­ tion for the same accordingly.
(6) The judgment in any action in which the defendant pleads a debt or demand by way of set off shall be in full discharge of the cause of action so pleaded.
(7) Where the defendant under this section pleads a debt or demand by way of set off the court may, notwithstanding anything herein contained, direct that such pleading be struck out if the court is of opinion that the matter cannot be conveniently or ought not to be disposed of in the pending action. Where the pleading is so directed to be struck out the defendant shall be at liberty to take such other proceedings as he may think fit in respect of the debt or demand.

(6) The Principal Act is amended—

Section 13. (a) by omitting from subsection one of section

(Venue).

thirteen the words “ for debt ” and the words

“ in such action ;

(b)	by inserting at the end of the same subsection the words “ or the liability for the damages arose
(c)	by omitting subsections two and four of the same section.

(7)

Smai! Debts Recovery (Amendment) Act. 133

(7) The Principal Act is amended by omitting

section fourteen and by inserting the following section 8iwtionl4.

in lien thereof:—

•

14. (1) ‘Where any plaintiff has any debt or Peraons

demand recoverable under this Act against two

or more persons jointly answerable, it shall be jgjg

sufficient if any one or more of such persons is No. 23,«, 59.

served with process, and judgment may be obtained

and execution issued against the person or persons

so served, notwithstanding that others jointly liable

have not been served or sued, or are not within the

jurisdiction of the court

(2) Every such person against whom sucli judgment is obtained under this Act, and who satis­ fies the whole or any part of such judgment, shall be entitled to demand and recover in a court having jurisdiction under this Act contribution from any other person jointly liable with him.

(8) The Principal Act is amended by omitting Section is.

section fifteen.

(9) (a) The Principal Act is amended by insert- Section 19,

ing in section nineteen after the word “ wife ” the word (Serviceof

“ husband.”	summons.)
(b) By inserting at the end of the same sec­ tion the following words:—“ but if service cannot be so effected after one attempt, service may be made by delivering such summons or duplicate to some person api)areiitly of not less than sixteen years of age at the said place o* abode.”

(10) The Principal Act is amended by omitting Scctiou28. from section twenty-eight the words: ” Where judgment (Judgm ent has been entered up by the court or the registrar under defence) this section tlie eourt may, on the application of the

defendant, direct the said amount and costs to bo paid at such times and by such instalments as it may think fit.”

(11) The Principal Act is amended by omitting &3ction29.

from section twentv-ninc the words “ the next.” (T rial)

( 12)

134                   Small Debts Recovery (Amendment) Act.

Mo. 1», 1933.

(]2) The Principal Act is amended by inserting at “ Provided that where a verdict has been entered for the defendant under this subsection, the court, on sufficient cause being shown, may, on such terms as it thinks fit, set aside such verdict, and set down the action for trial at the same or any subsequent sittings of the court.'’

Section 31.	the end of subsection one of section thirty-one the words:
(Non-suit)

Section 38, (13) Tlie Principal Act is amended by inserting

(Appear­

in subsection one of section thirty-eight after the word

ance.)

“ actions ” the words “ applications or proceedings ”

and after the word “ his ” the words “ spouse or.”

Section 40,	(14) 'I’lie Principal Act is amended—
(Entry of	(a) by omitting from section forty the wor<ls “ on

judgment.)

the cause list ” and liy inserting in lieu thereof

tlie words “ in llie record book” ;

(b) by omitting from the same section tlie words

“ clerk of such petty sessions ” and by inserting

in lieu thereof the word “ registrar.”

Section 41,	(Ifj) The Principal Act is amended by inserting in occurring the words ” or where the defendant appears at the hearing in the manner prescribed by subsection one of section thirty-eight of this Act.”
(Affidavit	section forty-one after the words ” tins Act ” where first
of service.)

(16) The Principal Act is amended by omitting

Section 42.

subsection one of section forty-two and by inserting the

following subsection in lieu thereof:—

Paym ent by (1) A court of petty sessions in which a Judgment

iiistalmenta.

has been given may at any time before or after the issue of execution thereon, upon the application of the judgment debtor, and upon notice given in the prescribed manner to the judgment creditor, direct the amount unpaid on the judgment to be paid at sueli times and liy such instalments as it thinks lit.

Every such aiiplicatioii shall be supported by affidavit in tlie prcscrilied form, and upon lodgment with the Registrar of such eourt shall ojierate as a stay of ])rocecdings uiioii the judgment until the hearing of the application:

Provided that such stay of proceedings shall not

operate for a greater ]ioriod than ten days e.vcept

upon the order of a jioliee or stipendiary magistrate,

wliich

Small Debts Recovery (Amendment) Act. 135

ITo. 14,1933.

wliicli order siifh magistrate is hereby empowered to grant ex-]iin'te, upoii saeh terms as to seeurity or otherwise as lie shall s(;o fit:

Provided that no stay ofi proceedings shall operate

in respect of any second or subsequent application

under this section in resiiect of the same judgment.

On the hearing of any application under this

section the court may receive evidence either orally

or by affidavit, and sliall have power to award costs

other than i)rofessional costs, to the judgment

creditor, and the costs so awarded shall be added to

the judgment debt.

Nothing in tliis snhseetioii shall abridge or curtail the ]>rovisions of section twenty-eight of the Aforatorium Act, 193il,

(17) Tlie Princiiial Act is amended— ScL-iion43.

(a)

by inserting in subsection one of section forty- (t.xeEution.) whenever judgment has been entered under sec­ tion twenty-eight of this Act by the regis­ trar

(b) by inserting in the same snbsceUon after the words “ decision was made ” the words “ or such judgment was entered up.”

(18) The Principal Act is amended—■

(a) (i) by omitting from subsection one of section Bcctiou54, fifty-four the words “ court in which he (I’xanima- ohtained judgment, or when the eourt is not

sitting, to the registrar thereof or a justice (JcMor.)

of the peace ” and by inserting in lieu

tliereof the words “ registrar thereof

(ii)  by omitting from the same sub.section the word “ whether ” and by inserting in liou' I hereof the words “ his property or means available for the satisfaction of such jiidg- ment and in particular as to

(iii)  by omitting from the same subsection the words court, or when it is not sitting, the registrar thereof or a justice of the peace ” and by inserting in lieu thereof the word “ registrar

( b )

Small Debts Recovery (Amendment) Act.

'

(h) (i) by omitting from subsection three of the

same section the word “ creditor ” and by

inserting In lieu thereof the word “ debtor^';

(ii)  l)v inserting at the end of the same subsec­ tion the words: “ Provided that no such examination as to the property or means of tile judgment debtor, other than debts due to him, shall be permitted without leave of the court.”

Section 55, (If)) The Principal Act is amended by inserting in

(Court.) subsection one of section fifty-five after the words

only by a ” the words “ stipendiary or.”

(20) Tlie Principal Act is amended—

Section 56. (a) (i) by omitting from subsection one of section sitting, the registrar tliereof or a justice of the peace ” and by inserting in lieu thereof the words “ registrar of a eourt

(Garnishee	fifty-six the words “ court, or when it is not
ctdsiB.)

(ii)  by inserting in the same subsection after the word “ residing ” the words “ or carry­ ing on business ” ;

(b)	by inserting in subsection three of the same sec­ tion after the word “ resident ” the words “ or carrying on business and by inserting after the words ” court to ” the words “ the registrar of ” ;
(c)	by omitting from subsection four of the same section the words “ court, or when it is not sit­ ting, the registrar thereof or a justice of the peace may, in its ” and by inserting in lieu thereof tlie words “ registrar may, in his ” ;
(d)	by omitting the proviso to subsection five of the same section;
(e)	by inserting at the end of the same section the following new subsection:—

(G) In this section the words “ wages or salary ” include earnings which are not under a contract of employment, but which arc either analogous to or in the nature of wages or salary, including the earnings of a share farmer or share worker, and the words “ servant or

employee ”

Small Debts Recovery (Amendment) Act. 137

emploj'ce ” meludc any person whose earnings are not under a contract of employment, but are cither analogous to or in the nature of wages or salary, including the earnings of a share farmer or share worker.

(21) The Principal Act is amended by omitting sections?,

from section fifty-seven the words “ the court, or when

it is not sitting, the registrar thereof or a justice of the cai;'so.)

peace may, by the garnishee order or any subsequent

order, summon the garnishee to appear ” and by insert­

ing in lieu thereof the "words “ The registrar of a court

may, by the garnishee order or any subsequent order,

summon the garnishee to appear before the court.”

(22) Tlie Principal Act is amended by inserting at the end of section sixty-Uvo the wmrds “ and a payment by the garnishee to the registrar before the return day of the summons shall be deemed to be a payment made under a proceeding herein provided.”

(2.3) The Principal Act is amended b y omitting Section G6.

section sixty-six and b y inserting the following section

in lieu thereof:—-

66. (1) Any party to an action may obtain at the witnesaes.

office of the registrar a snbpirna to a witness with

or without a clause requiring the production of * ' *

books, deeds, papers, and wu’itings in his possession

or control, and every person subpoenaed as a witness

to attend any of the courts of petty sessions shall

attend pursuant to such subpoena unless he has just

cause or reasonable excuse, and unless he has such

cause or excuse shall produce any books, deeds,

papers, or writings required by such subpoena to be

produced.

(2) Every subpoena sliall be served personally or in such other manner as is directed by the rules.

(3) Where any per.son duly served with a subpoena to attend as a witness fails to appear when called upon in open court, the court may, upon proof of such service, and also that his non-appear­ ance is without just cause or reasonable excuse, and upon oath that he will probably be able to give

material

133                  Small Debts Recovery (Amendment) Act.

Ho, 14,1933.

material evidence, issue a warrant in the form pro­ vided in the Second Schedule to bring him before the court to give evidence.

Such warrant may be addressed to the bailiffs and deputy bailiffs of any eourt of petty sessions and may be executed by any of them.

AVhen apprehended, such person may be released from custody upon giving to the satisfaction of the registrar of any eourt of petty sessions, or of a justice of the peace, security, in the form provided in the Second Schedule, in the sum of ten pounds, with or without a surety or sureties, for his appear­ ance at such time and place as such registrar or justice may appoint.

Such security may be enforced by action for and on behalf of His Majesty the King in the court at which the witness was sabpeenaed to attend, and such action may bo brought and con tinned and all pro­ ceedings in connection therewith may be carried on, and any judgment recovered may be enforced by the registrar, for the time being, of that court under the title of his office.

Any moneys so recovered shall be applied as the court directs.

(4) No witness shall be compelled to attend at any eourt of pettj' sessions without tender of his reasonable expenses. The scales of reasonable ex­ penses may be prescribed by the mles.

(5) Nothing in this section shall affect any provision of Part IV of the Evidence Act, 1898.

Section 67.	(24) The Principal Act is amended by omitting section sixty-seven and by inserting in lien thereof the following section:—
for con­

Punishment	67, Every court of petty sessions may punish for contempt in a summary way by fine not exceeding five pounds, recoverable in the same manner as a fine imposed by justices under the Justices Act, 1902, as amended, any plaintiff, defendant, witness, or person who is present in court and required to give evidence refusing without just or reasonable excuse
tempt.

to

Small Debts Recovery (Amendment) Act. 139

X T . 1 1 4- 110.14, 1933.

to be .sworn or to answer any mwinl question or to	.— .
produce any lioolcs, deeds, papers, or writings required to be produced by any subpoena duly served.

(25) The Princi]ial Act is amended by omitting £,eetion68.

section sixty-eight and by inserting in lieu thereof the

following section";—

()8. The clerk of the court of petty sessions shall riegistrar.

discharge the duties of registrar,

(2fj) 9hie Principal Act is amended by omitting Section 75.

from section seventy-live tlie words “ eause list ” and by (Award of

inserting in lien thereof the words “ record book.” orbitrator.)

(27) The Ib'incipal Act is amended—■

(a) hy inserting at the cud of tlie Foi'in No. (1 in the Second Scliediih' the following additional Holes:—

Under SfCtion 20 of the Sale of Goods Act, 1923, upon receipt of tliis jireecpt, the Bailiff sliall endorse upon tho back thereof the hour, day, month, and year when he received same.

Under section 4 of the Judgment Creditors’ I êlmedie^ Act, 1901, the Bailiff may seize and take in execution any money, bank notes, cheque, bill of exchange, promissory note, bond, specialty, or other security for money belonging to the person against whom this precept is sued out,

(b) by omitting Form uiiio, Aifachmoit for non- ;porm9.

appeaiance io a subpoena, in the Second Second

Schedule, and liy inserting the following form I’cbedule. in lieu tliereof:—-

9. ll’ammf u’/iere a witness has not oheyad a suhpeena.

Court of petty sessions for the )

district of	f
Plaint No. of 19

Between , Plaintiff, and , Defendant.

To the bailiffs of the Court of petty sessions for the

district of	and their deputies, and to each
and every of them,

WiiEHEAS having been duly served with r fiubpeena to attend as a witness in tins action at a court

holden at at on the day of

19 , failed to appear when called upon in open Court and

the due service of such subpoena on the said

liaving been proved to the Court and it also having been

proved to the Court that liis non-appearance was without

Just

140                 Small Debts Recovery (Amendment) Act.

Ho. 14, IMS.	just cause or reasonable excuse and oath having been made that he will probably be able to give material evidence^ these are therefore to command you and each of you to apprehend the said
wherever you may find him, and safely and securely keep him so that you may bring and have him before the Court
of petty sessions holden at , on the
day of , 19 , at o’clock, in the noon, to testify what he shall know concerning the above action, or so that he may be otherwise dealt with according to law.

Given under the seal of the Court this day

of , 19 .

(l.s.)

(us.)

Court of petty sessions holden

at

Form 16. (c) by inserting the follotving new Form sixteen

Second	after Form fifteen in the Second Schedule:—
Sebednle,
16. Recognizance of witness who has been apprehended for

disobeying subpeena.

To wit ;

B e it remembered that on the day of

in the year of Our Lord, one thousand nine hundred and , , of , in

the State of Xew South Wales focenpaiion')	, of	,
in the said State (occupation), and	,

of , in the said State (occupation), personally eame before me, Registrar of tbe Court of petty sessions holden at [(or) one of His Hajesty's Justices of the Peace for tbc said State] and severally acknowledged themselves to owe to Our Sovereign Lord tbc King the sum of ten pounds each of good and lawful money, if the said shall fall in the condition endorsed.

Taken and acknowledged the day and year first

abovementioned at	in tbe said State
before mo.

COXDITTON.

The condition of the within written recognizance is such that whereas the within named has been apprehended utul(?r and by virtue of a warrani issued by tbe Court of petty sessions holden at

in the said State for disobeying a subpeena to appear as a witness before such Court in a certain action in which

was plaintiff and

was

defendant.

N i .1 4 ,1933.

(.IcfoKlunt, if tlicreforc tlio said sliall appear

before Ibc said Court to be holden at on

the day of i 19 i at o’clock in the

noon and testify what he sliall know concerning the said action, then the said recognisance to be void or else to stand in full force and virluc,

3 . Tho ainendmtmts made? by tins Act in section fifty- Ss.ving.

six of the Principal Act shall not affect any proceediiifrs taken to enforce the payment of the amount of any judg­ ment obtained before tlic coinmencemeiit of this Act.