NSW UCPR [Form 53] Notice of Motion ➲ Examination Order

When is a NSW UCPR [Form 53] Notice of Motion ➲ Examination Order used?

See UCPR 38.2 for more information.

You can apply to the Court for an Examination Order if:

1️⃣ You have a Supreme Court Judgment or Order that remains unsatisfied; or

2️⃣ If the Court Judgment or Order is for the payment of money, whether or not an Instalment Order has previously been made in relation to the amount payable under the Judgment or Order and, if such an order has been made, that the person bound by the judgment or order has failed to comply with the Instalment Order; or

3️⃣ If you have a Court Judgment or Order (not granted by the Supreme Court) that remains unsatisfied; and

⚖️ The Judgment Debtor does not within the time required by the Examination Notice respond or sufficiently respond or produce sufficient documents for inspection as to any material questions to your [Form 51] Examination Notice - Individual or [Form 52] Examination Notice - Corporate; or

⚖️ The Judgment Debtor has not, within the previous 3 months, provided any or sufficient answers, or produced any or sufficient documents, in response to any previous Examination Notice,

Effect of the Court Granting the Examination Order

If the Court makes an Examination Order, the Judgment Debtor will be ordered to attend Court to be examined about their financial circumstances.

If you want the Judgment Debtor to produce copies of any documents at the examination you MUST describe the documents in this Notice of Motion.

If the Court grants the Notice of Motion the Registrar will issue an Examination Order.

Unless the Court orders otherwise you or your legal representative MUST attend court to examine the Judgment Debtor.

If you are not legally represented and have difficulties attending the examination you should contact the Registrar.

In certain circumstances, the Registrar may conduct the examination on your behalf.

UCPR 38.2 Application for Order for Examination

(1) An application for an order for examination with respect to the enforcement of a judgment or order MUST be supported by an affidavit as to the following matters

--(a) that the judgment or order remains unsatisfied,

(b) that the applicant has served an examination notice on the person bound by the judgment or order but that person has failed, within the time limited by the notice--

(i) to provide any or sufficient answers to the questions specified in the notice, or

(ii) to produce any or sufficient documents for inspection by the applicant,

as to any material questions,

(c) that the person bound by the judgment or order has not, within the previous 3 months, provided any or sufficient answers, or produced any or sufficient documents, in response to any previous examination notice,

(d) in the case of a judgment or order for the payment of money, whether or not an instalment order has previously been made in relation to the amount payable under the judgment or order and, if such an order has been made, that the person bound by the judgment or order has failed to comply with the instalment order.

(2) The provisions of subrule (1)(b) and (c) do not apply in relation to a judgment or order of the Supreme Court.

(3) Unless the court otherwise orders, an application under this rule--

(a) may be dealt with in the absence of the parties, and

(b) need not be served on the person bound by the judgment or order.

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 Court under UCPR 38.2 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.

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

[Form 53] includes an Affidavit in Support.

The Judgment Creditor MUST fill out each section of the included Affidavit in Support and sign the Affidavit stating that the information completed is true.

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

Filing Fees

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 is a filing fee of $1,436 for a Notice of Motion for an Examination Order in Corporation Matters.

No filing fee applies for a Notice of Motion for an Examination order related to the Enforcement of a Foreign Judgment.

As a Filing Fee applies for Corporation Matters, it is assumed that no filing fee applies for a Notice of Motion for an Examination Order in Individual Matter. We recommend further investigation directly with the Court for confirmation.‍

Affidavit MUST include Solicitor's Fees

Schedule 1 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) sets out the amounts you are entitled to claim for Solicitors’ Fees in each of the NSW Courts.

Costs of issuing an examination notice and obtaining an order for examination, including drawing/typing/checking of notice of motion and cheque to pay account of process server:

Supreme Court ➲ Not Listed

District Court ➲ $647

Local Court ➲ $374

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.