New South Wales Repealed Acts

This legislation has been repealed.

LOCAL COURTS (CIVIL CLAIMS) ACT 1970 - SECT 52

52 Procedure where garnishee order not complied with

(1) Where a judgment creditor is satisfied that a garnishee order relating to the judgment debt has not been complied with by the garnishee on whom it was served, the judgment creditor may file with the registrar a summons requiring the garnishee to show cause at the court for the district specified in the summons, being the district in which the garnishee has his or her place of abode, business or employment, why the garnishee should not comply with the garnishee order.

(2) A summons filed under subsection (1) shall be made returnable at a court, determined by the registrar of the court in which it was filed, for the district specified by the judgment creditor in the summons and at a time and on a return date so determined.

(3) If at the time set down (whether originally or on an adjournment) for the garnishee’s appearance to answer the summons, the garnishee:

(a) fails to appear at the court determined by the registrar, or

(b) appears at that court but does not satisfy the court that the debt alleged by the judgment creditor to be owing by the garnishee to the judgment debtor is bona fide in dispute,

the court may:

(c) order execution to issue and it may be sued out accordingly without any other writ or process to levy the amount alleged to be due from the garnishee to the judgment debtor or the unpaid amount of the judgment debt, whichever is the lesser, in payment of or towards satisfaction of the judgment debt, or

(d) adjourn the matter and order that the garnishee appear before the court to show cause at such time as may be specified in the order why the garnishee should not comply with the garnishee order,

but shall not make an order under paragraph (c) except upon due proof of service of the summons on the garnishee or, where the matter has been adjourned, of the garnishee having been served with notice of the time and place fixed for the garnishee’s appearance.

(4) Where a garnishee appears to show cause as mentioned in subsection (3) and satisfies the court that the debt alleged by the judgment creditor to be owing by the garnishee to the judgment debtor is bona fide in dispute, the court shall:

(a) where it is satisfied that it would not have jurisdiction under this Act in an action relating to the debt-by its order, discharge the garnishee order which shall thereupon cease to have any force or effect, or

(b) in any other case-order that the question as to whether the garnishee is liable to pay the debt or any part of the debt to the judgment debtor be set down for hearing in the court at a time and on a date specified in the order.

(5) Where the court makes an order under subsection (4) (b), the judgment creditor shall be deemed to have commenced an action, at the court and at the time on the date specified in the order, against the garnishee for the recovery of the amount of the debt alleged to be owing by the garnishee to the judgment debtor or the unpaid amount of the judgment debt, whichever is the lesser, and, upon the judgment creditor proving the debt, judgment against the garnishee shall be given in favour of the judgment creditor for that amount.

(6) The court may, in an order under subsection (4) (a) or in a judgment under subsection (5), order the payment of such amount as may be specified in the order or judgment by one party to the other:

(a) for or towards the reasonable professional costs incurred by that other party in connection with proceedings under this section,

(b) for or towards the reasonable expenses incurred by that other party in connection with the garnishee order, and

(c) for or towards witnesses’ expenses incurred by that other party.

(7) Costs or expenses allowed as referred to in subsection (6):

(a) in the case of an order under subsection (4) (a)-are a judgment against the party liable to pay the costs or expenses, or

(b) in the case of a judgment under subsection (5)-form part of the judgment,

and are enforceable accordingly.