NSW UCPR [Form 69] Notice of Motion ➲ Garnishee Order

When is a NSW UCPR [Form 69] Notice of Motion ➲ Garnishee Order used?

See UCPR 39.34 and 39.35 for more information.

You can apply to the Court by Notice of Motion for a Garnishee Order if:

1️⃣ The Court has given you a Judgment in your favour; and

2️⃣ As a matter of caution, you have considered the possibility that the Court may in its discretion determine that a Garnishee Order is inappropriate due to reasons such as the following:

❌ The smallness of the amount recoverable under the judgment debt; and

❌ The smallness of the debt, wage or salary to be attached.

This [Form 69] MUST be used if you are applying for a Garnishee Order.

What is a Garnishee Order?

A Garnishee Order is an order that directs a person who owes a debt or holds or expects money payable to or by the Judgment Debtor to pay that money to you in satisfaction of the judgment debt.

This person is referred to as the Garnishee.

A Garnishee Order may be directed to an employer, a bank manager or any other person who holds money payable to the Judgment Debtor.

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 38.6 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

Unless the court orders otherwise, an applicant for a garnishee order must file an affidavit in support of the application, being an affidavit sworn not more than 14 days before the date of filing.

This [Form 69] includes an Affidavit in Support.

Each section of the included Affidavit in Support MUST be completed and the Affidavit signed stating that the information completed is true.

The Affidavit should be made by the person or persons who have knowledge of the facts that are included in the Affidavit and include reference to the source of the person’s knowledge and belief, if appropriate.

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

Supporting Affidavit ➲ Mandatory Requirements

The Affidavit in Support--

(a) MUST identify the Garnishee (that is, at least provide a name and address) and any debts that are, or are reasonably likely to be, owed by the Garnishee (as money payable as wages or salaries or some other debt due) to the Judgment Debtor, and

(a1) MUST state the grounds relied on in support of identifying a debt for the purposes of paragraph (a), and

(b) MUST state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit, and

(c) if the judgment was entered as a result of the filing of a Cost Assessor's Certificate, MUST include a Statement to that effect, together with a Statement to the effect that the determination set out in the Certificate--

(i) is not subject to any suspension under section 86 of the Legal Profession Uniform Law Application Act 2014 that has not been ended under that section, and

(ii) is not subject to any suspension under section 90 of the Legal Profession Uniform Law Application Act 2014 that has not been ended under that section.

The application MUST indicate the extent (if any) to which the judgment debt has been satisfied under any writ of execution, garnishee order or charging order issued by the Court.

Instalment Order that has ceased to have any effect

Any application by the Judgment Creditor for a Garnishee Order in relation to a judgment debt that has been the subject of an Instalment Order that has ceased to have effect may not be granted UNLESS the Judgment Creditor has filed an Affidavit as to the Judgment Debtor's failure to comply with the order.

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 is a filing fee of $1,436 for a Notice of Motion.

However, no filing fee applies for a Notice of Motion for a Garnishee Order.

No Hearing

Unless the Court orders otherwise, your application will be dealt with in the absence of the parties.

No Service Requirements unless the Court Orders

Unless the Court orders otherwise, there is no requirement to serve the Notice of Motion on the Judgment Debtor.

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.