INSTRUMENTS ACT 1958 - SECOND SCHEDULE

INSTRUMENTS ACT 1958 - SECOND SCHEDULE

Second Schedule

TO THE DEFENDANT

TAKE NOTICE that this proceeding has been brought against you by the plaintiff for the claim set out in this writ.

IF YOU INTEND TO DEFEND the proceeding YOU MUST GIVE NOTICE of your intention by first obtaining the leave of the Court to file an appearance and then filing an appearance within the proper time for appearance stated below.

YOU OR YOUR LEGAL PRACTITIONER may file the appearance. An appearance is filed by—

(a)     filing a "Notice of Appearance" in the Prothonotary's office in the Law Courts, William Street, Melbourne, or, where the writ has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and

(b)     on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff's address for service, which is set out at the end of this writ.

IF YOU FAIL to obtain the leave of the Court to file an appearance within the proper time and to file an appearance within that time, the plaintiff may ENTER JUDGMENT AGAINST YOU on the claim without further notice.

THE PROPER TIME FOR OBTAINING LEAVE TO FILE AN APPEARANCE AND FOR FILING AN APPEARANCE is as follows—

(a)     where you reside within 80 kilometres of the post office corner of Bourke and Elizabeth Streets Melbourne, within 16 days after service;

(b)     where you reside beyond that distance, within 21 days after service.

IF you pay the amount claimed, namely, $     and $     for legal costs to the plaintiff or his legal practitioner within the proper time stated above, this proceeding will come to an end. Notwithstanding the payment you may have the costs assessed by the Costs Court.

APPLICATION FOR LEAVE TO DEFEND must be made within the proper time stated above to an Associate Judge of the Court, Law Courts, William Street, Melbourne. It is not necessary to give notice of the application to the plaintiff.

THE COURT MAY GIVE LEAVE TO DEFEND if you—

(a)     pay into Court the amount claimed, namely, $     ; or

(b)     file affidavits satisfactory to the Court which disclose—

              (i)     facts which disclose a defence; or

              (ii)     such facts as would make it incumbent on the holder to prove consideration; or

              (iii)     such other facts as the Court considers sufficient to support the application.

FILED [e.g. 15 June, 19 ].

Prothonotary

THIS WRIT is to be served within one year from the date it is filed or within such further period as the Court orders.

INDORSEMENT OF CLAIM

The plaintiff claims $     principal and interest [ or $     balance of principal and interest] due to the plaintiff as the payee [indorsee or bearer] of a bill of exchange [promissory note or order for the payment of money] of which the following is a copy:

[ Here copy bill and all indorsements on it ]

Complete as follows:

1. Place of trial—

(if no place of trial is specified, trial will be in Melbourne.)

2. Mode of trial—

(if trial before a Judge and jury is not specified, trial will be before a Judge sitting alone.)

3. *This writ was filed—

(a)     by the plaintiff in person;

(b)     for the plaintiff by [ name or firm of legal practitioner ], legal practitioner, of [ business address of legal practitioner ];

(c)     for the plaintiff by [ name or firm of legal practitioner ], legal practitioner, of [ business address of legal practitioner ] as agent for [ name or firm of principal legal practitioner ], legal practitioner, of [ business address of principal ].

4. The address of the plaintiff is—

5. The address for service of the plaintiff is—

[ Where the plaintiff sues by a legal practitioner, the address for service is the business address of the legal practitioner or, where the legal practitioner acts by an agent, the business address of the agent. Where the plaintiff sues without a legal practitioner, the address for service is stated in 4, but, where that address is outside Victoria, the plaintiff must state an address for service within Victoria. ]

6. The address of the defendant is—

*[Complete or strike out as appropriate.]

Sch. 3 repealed by No. 110/1986 s. 134(i).

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Schs 4, 5 repealed by No. 9650 s. 27(1)(e).

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Sch. 6 amended by S.R. No. 375/1973 reg. 2(c), repealed by No. 74/2010 s. 15(2).

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Sch. 7 repealed by No. 74/2010 s. 15(4).

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Sch. 8 repealed by No. 74/2010 s. 15(5).

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Schs 9–11 repealed by No. 84/1997

s. 48(2).

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Section 107 (1).

Sch. 12 substituted by No. 9421 s. 3.