Untitled document

Magistrates' Court Civil Procedure (Amendment No. 23) Rules 2008

S.R. No. 64/2008

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5Filing of process

6Insertion of new Order 28A

ORDER 28A—PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002

28A.01Definitions

28A.02Commencement of proceeding under section 28R of
the Act

28A.03Power of registrar to make order in proceedings
under section 28R of the Act

28A.04Setting aside an order

28A.05Certification of debt by Court

28A.06Application for stay of payments

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ENDNOTES

STATUTORY RULES 2008

S.R. No. 64/2008

Magistrates' Court Act 1989

Magistrates' Court Civil Procedure (Amendment No. 23) Rules 2008

The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:

1Object

The object of these Rules is to amend the Magistrates' Court Civil Procedure Rules 1999 to make provision for certain proceedings under the Building and Construction Industry Security of Payment Act 2002 and other related matters.

2Authorising provisions

These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers.

3Commencement

These Rules come into operation on 23 June 2008.

4Principal Rules

In these Rules the Magistrates' Court Civil Procedure Rules 1999[1] are called the Principal Rules.

5Filing of process

In Rule 4.04(1) of the Principal Rules, for "A proceeding" substitute "Unless otherwise provided in these Rules, a proceeding".

6Insertion of new Order 28A

After Order 28 of the Principal Rules insert—

"ORDER 28A—PARTICULAR PROCEEDINGS UNDER THE BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002

28A.01Definitions

In this Order—

adjudication certificate has the same meaning as in section 4 of the Act;

authorised nominating authority has the same meaning as in section 4 of the Act;

claimant has the same meaning as in section 4 of the Act;

principal has the same meaning as in section 4 of the Act;

the Act means the Building and Construction Industry Security of Payment Act 2002.

28A.02Commencement of proceeding under section 28R of the Act

A proceeding under section 28R of the Act may be commenced by a person, who has been provided with an adjudication certificate by an authorised nominating authority, applying to the Court by filing in the Court the certificate and affidavit that are required to be filed under section 28R of the Act.

28A.03Power of registrar to make order in proceedings under section 28R of the Act

In any proceeding commenced under Rule 28A.02, the registrar may make an order that the respondent pay the person applying under that Rule the unpaid amount if the registrar is satisfied that—

(a)the adjudication certificate has been provided by the authorised nominating authority; and

(b)an amount payable under section 28M or 28N of the Act has not been paid.

28A.04Setting aside an order

Order 30, with any necessary modifications, applies to making an application to set aside an order in any proceeding under section 28R of the Act.

28A.05Certification of debt by Court

(1)For the purposes of section 33 of the Act the court may be constituted by a registrar.

(2)An application for an order under section 33(1) of the Act may be made in writing and Order 20 does not apply to any such application.

28A.06Application for stay of payments

(1)For the purposes of section 37(1) of the Act, an application by a principal for a stay of payments under that section must be made in the proceeding in which the claimant has obtained an order for the adjudicated amount or part of the adjudicated amount as referred to in section 30(c) of the Act.

(2)Order 20, with any necessary modification, applies to an application under section 37(1) of the Act.".

Dated:    18 June 2008

IAN LESLIE GRAY,

Chief Magistrate

FELICITY BROUGHTON,

Deputy Chief Magistrate

DANIEL JOHN MULING,

Deputy Chief Magistrate

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ENDNOTES

[1] Rule 4: S.R. No. 58/1999.  Reprint No. 3 as at 1 March 2005.  Reprinted to S.R. No. 5/2005.  Subsequently amended by S.R. Nos 15/2005, 165/2005, 87/2006, 164/2006, 170/2006, 178/2006, 103/2007, 119/2007, 142/2007 and 43/2008.