NSW UCPR [Form 46] Notice of Motion ➲ Pay by Instalments - Individual

When is a NSW UCPR [Form 46] Notice of Motion ➲ Pay by Instalments - Individual used?

See UCPR 37.2 for more information.

You MUST use this [Form 46] if:

⚖️ You are a Judgment Debtor or acting for a Judgment Debtor and want to apply to the court for an order to pay the judgment debt by instalments; or

⚖️ You have been served with a Statement of Claim, have filed the [Form 35] Acknowledgement of Liquidated Claim, and want to apply to the court for an order to pay the amount of the claim by instalments.

You can ask to pay the instalments:

➲ Weekly;

➲ Fortnightly;

➲ Monthly; or

➲ In a lump sum by a particular date.

Notice of Motion ➲ Overview

Unless the Uniform Civil Procedures Rules (NSW) 2005 (UCPR) provide otherwise, you MUST prepare a Notice of Motion if you are making an interlocutory or other application in the proceedings (see UCPR 18.1).

The courts receive large numbers of some types of applications (e.g. an application for default judgment on a liquidated claim).

The Uniform Rules Committee has approved specific forms for the more common types of Notice of Motion.

You MUST use the specific form if one has been approved for the type of application you are making to the court.

Document Overview:

✅ Suitable for the NSW Courts under the Uniform Civil Procedure Rules (NSW) 2005;

✅ Recommended only for use by legal professionals +/or at a minimum with review by a legal professional prior to filing with the Court;

✅ This Notice of Motion is normally an application dealt with by the Registrar under  UCPR 37.3 (but if made during a hearing before the Court is to be dealt with by the Court under UCPR 37.4) who will decide to grant or refuse the application.

‍Embedded Lawyer-Logic™ dynamically adapts to your answers to provide valuable guidance and help you avoid errors.

Examination Hearing Exception for Filing & Service

This [Form 46] Notice of Motion ➲ Pay by Instalments - Individual does not have to be filed or served if the application is made during the hearing at which the Judgment Debtor is being examined pursuant to an order for examination. See UCPR 37.2(4).

Contents of the Notice of Motion

See UCPR 18.3 for more information about how to describe the persons who are filing or who are affected by a Notice of Motion.

Included Affidavit in Support ➲ Financial Statement

[Form 46] includes a pro-forma Financial Statement as an Affidavit in Support.

The Judgment Debtor MUST fill out each section of the Financial Statement and sign the Affidavit stating that the information completed in the Financial Statement is true.

For detailed instructions regarding properly making the Affidavit please refer to this FAQ.

No Filing Fee

Schedule 1 of the Civil Procedure Regulation 2017 (NSW) sets out the amount the Court charges for filing a Notice of Motion.

Supreme Court

As at 1 July, 2023 the NSW Supreme Court website states that there are no filing fees for a Notice of Motion for Instalment Orders.

Service Requirements

See UCPR 18.2, 18.4 and 18.5 for more information about how and when to serve a Notice of Motion.

Unless the court orders otherwise, a Notice of Motion MUST be served at least 3 clear business days before the hearing date of the motion.

You MUST include the following information if the court orders that the Notice of Motion has to be served by a particular time.

You MUST include the street address, postal address and telephone number of the court registry.

You should copy the registry street address, postal address and telephone number from the statement of claim or summons, or

If relevant, include details of the street address, postal address and telephone number of the registry where the court has transferred the proceedings.

Legal Advice Recommended

The type of Notice of Motion you are filing with the NSW Courts will determine whether a specific UCPR form is required to be filed, and what documents are required to be filed in support.

In short, due to the complexities involved in determining which form of Notice of Motion to use, together with the crucial importance of getting the details of the motion and supporting documentation right to the success of your motion:

➲ We recommend you contact our legal team to obtain legal advice and guidance regarding which:

⚖️ Forms are required due to the type of Notice of Motion is being made; and which

⚖️ NSW Courts Practice Note (if any) applies; and accordingly which

⚖️ Documents MUST or may be filed in support of your Notice of Motion.

Important Note:

The Applicant filing this Form is required to serve a copy of the filed Form together with all other filed documents on all affected parties.