NSW UCPR [Form 73] Notice of Motion ➲ Charging Order

When is a NSW UCPR [Form 73] Notice of Motion ➲ Charging Order used?

See s.126 of the Civil Procedure Act 2005 (NSW) and UCPR 39.44 and 39.45 for more information.

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

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

2️⃣ The judgment grants a Security Interest in one of the following kinds of property:‍

⚖️ Stock and Shares in a Public Company; or

⚖️ Money on deposit in a financial institution, being--

➲ Money held in the judgment debtor's name in the judgment debtor's own right; or

➲ Money held in the name of some other person in trust for the judgment debtor; or

⚖️ Any equitable (not a Legal) interest in property.

This [Form 73] MUST be used if you are applying for a Charging Order against Security Interests owned by the Judgment Debtor.

No Charging Order based on a Legal Interest in Land ➲ Not a Security Interest under the UCPR

Security Interests for the purposes of a Charging Order under the UCPR do not include legal interests in land, therefore they do not include:

❌ The interest of a registered proprietor under a certificate of title.

What is a Charging Order?

A Charging Order is an order that operates, in relation to each security interest specified in the order--

(a) to charge the security interest in favour of the judgment creditor to the extent necessary to satisfy the judgment, and

(b) to restrain the chargee from dealing with the security interest otherwise than in accordance with the directions of the judgment creditor.

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 District & Supreme 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 charging 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 73] includes the mandatory 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 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

(b) 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, and

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 Charging 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 Charging 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 or the proposed Chargee.

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.

Further Reading

126 Operation of charging order in relation to specified security interests

(cf Act No 8 1901, section 27)

(1) This section applies to the following kinds of property in relation to a judgment debtor (referred to in this Division as
"security interests" )--

(a) stock and shares in a public company,

(b) money on deposit in a financial institution, being--

(i) money held in the judgment debtor's name in the judgment debtor's own right, or

(ii) money held in the name of some other person in trust for the judgment debtor,

(c) any equitable interest in property.

(2) Subject to the uniform rules, a charging order operates, in relation to each security interest specified in the order--

(a) to charge the security interest in favour of the judgment creditor to the extent necessary to satisfy the judgment, and

(b) to restrain the chargee from dealing with the security interest otherwise than in accordance with the directions of the judgment creditor.

(3) A charging order takes effect when it is made.

(4) Despite subsection (3), the judgment creditor may not commence proceedings to take the benefit of a charge arising under a charging order until after the expiration of 3 months from the date of the order.

(5) A charging order entitles the judgment creditor, in relation to the security interests charged by the order, to any relief to which the judgment creditor would have been entitled had the charge been made in the judgment creditor's favour by the judgment debtor.

Note : Section 106 (1) (c) provides that a judgment debt may be enforced by a charging order only in the case of a judgment of the Supreme Court or the District Court.