Part 1 Preliminary

Part 1 Preliminary

1 Name of Rules

1 Name of Rules

These rules may be cited as the Supreme Court Rules 1970.

2 Commencement

2 Commencement

These rules shall commence on the commencement of the Act.

Editorial note—

Date of commencement: 1.7.1972. See Gazette No 59 of 2.6.1972, p 2018.

3

3–7 (Repealed)

8 Interpretation

8 Interpretation

cf RSC (Rev) 1965, O 13, r 1 (2).

(1) In these rules, unless the context or subject matter otherwise indicates or requires—

ASIC means the entity known as the Australian Securities Commission prior to 1 July 1998, and subsequently known as the Australian Securities and Investments Commission.

assess, when used in relation to costs assessed otherwise than by the Court, means assess in accordance with Part 11 of the Legal Profession Act 1987.

associate Judge includes an acting associate Judge.

barrister has the same meaning as it has in the Legal Profession Act 1987.

Companies Code means the Companies (New South Wales) Code.

convention means a convention made between Her Majesty or any of her predecessors and the king or other head of state of a foreign country regarding legal proceedings in civil and commercial matters.

convention country means a foreign country to which a convention applies.

corporation includes any artificial person.

costs determination means a determination made under section 180 of the Legal Profession Act 1987 as in force from time to time prior to 1 July 1994.

cross-claim means a claim for relief under section 78 of the Act.

curator means—

(a) in respect of a person—

(i) the management of whose estate is, by the Protected Estates Act 1983 or by any order of the Court or the Guardianship Tribunal under that Act or under the Guardianship Act 1987, committed to the Protective Commissioner,

(ii) of whose estate the Protective Commissioner has, in accordance with section 63 of the Protected Estates Act 1983, undertaken the management, or

(iii) in relation to whose property the Protective Commissioner is authorised as mentioned in section 66 (1) (a) of that Act,

the Protective Commissioner,

(b) in respect of a person of whose estate a manager has been appointed by order of the Court or the Guardianship Tribunal under section 22 of the Protected Estates Act 1983 or section 25M of the Guardianship Act 1987—the manager appointed.

disable person means a minor or an incompetent person.

document means any record of information, and includes—

(a) anything on which there is writing,

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them,

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

(d) a map, plan, drawing or photograph.

cf Act No 15 of 1987, s 21 (1).

expert means a person who has specialised knowledge based on the person’s training, study or experience.

fax means send a copy by facsimile transmission.

folio means 100 words, five figures being counted as one word.

cf Cost Rules, r 2. Rules of the Supreme Court (Revised) 1965 (Eng), O 1, r 4 (1).

Foreign Evidence Act means the Foreign Evidence Act 1994 of the Commonwealth.

funds includes money, debentures, stock, shares and other securities and investments.

incompetent person means—

(a) a person who is not a minor and who is—

(i) incapable of managing his or her affairs, or

(ii) incommunicate, or

(b) a minor who has a curator.

Law Courts Building means the building in which the Sydney registry of the Court is located.

Mutual Recognition Act means the Mutual Recognition Act 1992 of the Commonwealth.

notice means notice in writing.

cf RSC (Rev) 1965, O 66, r 2 (5).

officer, in relation to a corporation, includes a director and any person having (whether alone or with others) powers of management, direction or control of the corporation.

officer of the Court does not include a solicitor, barrister or liquidator.

originating process means a statement of claim, a summons or, where a cross-claim is made against a person not previously a party to the proceedings in which the cross-claim is made, the cross-claim.

pay, in relation to funds, includes transfer, deposit and deliver.

person bound, in relation to a judgment or order, means a person required by the judgment or order—

(a) to pay money,

(b) to give possession of land,

(c) to deliver goods (with or without the alternative of paying the assessed value of the goods),

(d) to do any other act, or

(e) to abstain from doing any act.

personal injuries includes any disease and any impairment of a person’s physical or mental condition.

cf RSC (Rev) 1965, O 5, r 2.

registry means a registry at Lismore, Newcastle, Orange, Sydney, Wagga Wagga or Wollongong.

Riverina means the district of the State comprising Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora, Tumut and Wagga Wagga.

solicitor has the same meaning as it has in the Legal Profession Act 1987.

the Act means the Supreme Court Act 1970.

the Evidence Act means the Evidence Act 1995.

the Service and Execution of Process Act means the Service and Execution of Process Act 1992 of the Commonwealth.

Trans-Tasman Mutual Recognition Act means the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.

tutor means a next friend or guardian ad litem of a disable person.

(2) Where—

(a) reference is made in the rules to the holder of an office in the Public Service or in the Australian Public Service, and

(b) the name of the office is changed or the relevant function is assumed by the holder of another office,

the reference shall continue to apply to the holder of that office.

(3), (4) (Repealed)

9 Seals

9 Seals

(1) There shall be the seals mentioned in the first column in the table below, which shall be impressed seals and respectively shall have the wording mentioned in the second column of the table and shall be in the custody of the officer mentioned in the third column of the table.

| Seal | Wording | Custody | | General seal of the Court. | Supreme Court of New South Wales. | Prothonotary. | | Seal of the Court of Appeal. | Supreme Court of New South Wales: Court of Appeal. | Registrar of the Court of Appeal. | | Seal of each Division. | Supreme Court of New South Wales: (name of the Division). | Registrar of the Division. |

cf Protective Jurisdiction Rules 1968, r 11 (1).

(2) Each of the seals mentioned in subrule (1) shall have effect as the seal of the Court.

(3) Except where the rules otherwise provide, but subject to subrule (4), the seal of the Court of Appeal or the general seal of the Court shall be used for the purpose of proceedings in the Court of Appeal and the seal of each Division or the general seal of the Court shall be used for the purpose of proceedings in that Division.

(4) A rubber stamp facsimile of any seal may be used instead of the seal for any purpose.

cf PJR r 11 (3).

(5) (Repealed)

9A

9A, 9B (Repealed)

9C Filing bail applications

9C Filing bail applications

A bail application, within the meaning of the Bail Act 2013, is sufficiently filed if a copy of the application has been filed in the Sydney registry by any of the following means—

(a) email,

(b) in person,

(c) post,

(d) in the case of an applicant who is in custody—fax.

10

10, 10A (Repealed)

11 Forms

11 Forms

cf Act No 15 of 1987, s 80.

(1) Forms are prescribed in Schedule F.

(2) A reference in any such form to a provision of these rules includes a reference to the corresponding provision (if any) of the Uniform Civil Procedure Rules 2005.

(3) If a form is approved under section 17 of the Civil Procedure Act 2005 in relation to the same matter as that for which a form is prescribed in Schedule F, the form to be used is the approved form and not the prescribed form.

11A

11A, 12 (Repealed)

13 Procedure wanting or in doubt

13 Procedure wanting or in doubt

(1) Where a person desires to commence proceedings or take any step in any proceedings, and the manner or form of procedure is not prescribed by the Act or the rules or by or under any other Act or that person is in doubt as to the manner or form of procedure, the Court may, on application by that person, give directions.

cf High Court Rules, O 72, r 1 (1).

(2) Proceedings commenced in accordance with the directions of the Court shall be well commenced.

cf HCR, O 72, r 1 (2).

(3) A step taken in accordance with the directions of the Court shall be regular and sufficient.

cf HCR, O 72, r 1 (2).

(4) In respect of proceedings to be commenced for directions under subrule (1), application may be made by summons in any Division.

14

14 (Repealed)

Part 1A Sittings and vacations

Part 1A Sittings and vacations

Part 1B

Parts 1B–11

(Repealed)

Part 12 Distribution of business

Part 12 Distribution of business

1A Procedure under particular Acts

1A Procedure under particular Acts

The provisions of Schedule J with respect to proceedings under an Act or instrument referred to in that Schedule apply to proceedings in the Court under that Act or instrument.

Part 13 Recording and broadcast of judgments remarks

Part 13 Recording and broadcast of judgments remarks

4 Chief Justice may give directions concerning manner in which recordings to be made

4 Chief Justice may give directions concerning manner in which recordings to be made

(1) The Chief Justice may give such directions as the Chief Justice thinks fit for the orderly administration of the Court with respect to the manner in which recordings of the judgment remarks of the Court are to be made.

(2) A direction given under this rule may qualify, or add to, any of the requirements set out in rule 3.

5 Shared use of recordings by news media organisations

5 Shared use of recordings by news media organisations

(1) Subject to subrule (2), a news media organisation that is permitted by the Court to record judgment remarks of the Court must, as soon as practicable after the recording is made, make the recording available for use by any other news media organisations that wish to broadcast it.

(2) If the recording made by the news media organisation is for a live broadcast, the news media organisation is to ensure that any other news media organisations that wish to broadcast it have equal access at the same time to the live feed.

Part 14

Parts 14–51A

(Repealed)

Part 51B Appeals to the Court under Part 5 of the Crimes (Appeal and Review) Act 2001

Part 51B Appeals to the Court under Part 5 of the Crimes (Appeal and Review) Act 2001

6 Time for appeal

6 Time for appeal

(1) Subject to subrules (1A) and (2) and any provisions made by or under any Act, an appeal must be instituted within 28 days after the material date.

(1A) If an application is made to a Local Court under Part 2 of the subject Act, the time for instituting an appeal does not start to run until the application under Part 2 is finally disposed of.

(2) Time fixed by subrule (1) may be extended—

(a) by the Court at any time, or

(b) where the decision appealed from is that of a magistrate—by the tribunal below, but only within the time fixed by subrule (1) for instituting an appeal (as extended by subrule (1A)) or on application filed within that time.

(3) A party applying to the Court for an extension of time under subrule (2) (a) shall—

(a) include that application in the summons instituting the appeal, or

(b) lodge with his or her notice of motion or summons a draft, completed as far as possible, of the summons under rule 7 and the statement under rule 8, to be filed if an extended time is fixed.

7 Institution of appeal

7 Institution of appeal

Subject to rule 5, an appeal to the Court is to be instituted by filing a summons under Part 5 rule 3 that claims the decision that the party instituting the appeal seeks in place of the decision of the tribunal below.

12 Directions for service

12 Directions for service

Where the Court makes an order granting—

(a) leave to appeal or to cross-appeal, or

(b) an extension of time for—

(i) appealing or cross-appealing, or

(ii) applying for leave to appeal or to cross-appeal,

the Court may, at the same time or afterwards, give directions for service other than personal service of any summons or notice of cross-appeal by which, pursuant to the order, proceedings are commenced for an appeal or for leave to appeal or to cross-appeal, and of any other document in the proceedings so commenced.

15 Date of hearing of appeal

15 Date of hearing of appeal

Unless the Court otherwise orders, the appeal shall not be heard before 21 days after service of the summons by which the appeal is instituted.

16 Amendment

16 Amendment

(1) The summons by which the appeal is instituted and any statement under rule 8 may be amended by the plaintiff without leave by filing a supplementary notice not less than 7 days before the day appointed for hearing.

(2) The plaintiff must, on the day of filing the supplementary notice, serve it on the other parties and must file or lodge a copy of it in accordance with rule 13 as if it were a summons.

(3) Subrule (1) does not affect the powers of the Court under Part 20 (which relates to amendment).

17 Cross-appeal

17 Cross-appeal

(1) Where a defendant wishes to appeal from the whole or part of a decision, the defendant shall file a notice of cross-appeal.

(2) The defendant must file the notice of cross-appeal within the later of—

(a) 28 days after service of the summons instituting the appeal on the defendant, and

(b) 14 days after leave to appeal or to cross-appeal is given.

(3) Subject to subrules (1), (2) and (4), the provisions of this Part relating to an appeal and a summons apply to the cross-appeal and a notice of cross-appeal.

(4) Part 6 and rule 6 (which relates to time for appeal) do not apply to a cross-appeal or notice of cross-appeal.

18 Notice of contention

18 Notice of contention

Where a defendant wishes to contend that the decision of the tribunal below should be affirmed on grounds other than those relied upon by the tribunal below but does not seek a discharge or variation of any part of the decision of the tribunal below, the defendant need not file a notice of cross-appeal but, within the time limited by rule 17 (2), the defendant must—

(a) file notice of that contention stating, briefly but specifically, the grounds relied upon in support of the contention, and

(b) serve the notice of contention on each other party to the appeal.

Part 52

Parts 52–54

(Repealed)

Part 55 Contempt

Part 55 Contempt

Division 1 Preliminary

Division 1 Preliminary

Division 2 Contempt in the face or hearing of the Court

Division 2 Contempt in the face or hearing of the Court

Division 3 Motion or proceedings for punishment

Division 3 Motion or proceedings for punishment

Division 4 General

Division 4 General

Part 56

Parts 56–59A

(Repealed)

Part 60 Associate Judges

Part 60 Associate Judges

Part 61 Registrars and chief clerk

Part 61 Registrars and chief clerk

4A Practice in registries outside Sydney

4A Practice in registries outside Sydney

The practice of the Sydney registry shall, so far as practicable, be followed in any other registry.

Part 62

Parts 62–65

(Repealed)

Part 65A Legal profession

Part 65A Legal profession

Part 65B

Part 65B

1 (Repealed)

Part 65C Admission as legal practitioner

Part 65C Admission as legal practitioner

Part 66

Parts 66–68

(Repealed)

Part 69 Infants’ Custody and Settlements Act rules

Part 69 Infants’ Custody and Settlements Act rules

Part 70

Parts 70, 71

(Repealed)

Part 71A Service and Execution of Process Act 1992 (Commonwealth)

Part 71A Service and Execution of Process Act 1992 (Commonwealth)

Part 72

Parts 72–73

(Repealed)

Part 74 Transfers of proceedings; cross-vesting laws

Part 74 Transfers of proceedings; cross-vesting laws

Part 75 Criminal proceedings

Part 75 Criminal proceedings

3AA Forms approved by Uniform Rules Committee not to be used

3AA Forms approved by Uniform Rules Committee not to be used

Despite anything to the contrary in this Part, a form approved under section 17 of the Civil Procedure Act 2005 is not to be used for the purposes of proceedings in the Court that are specified in the Third Schedule to the Act or in proceedings to which Division 2 applies.

3A Children (Criminal Proceedings) Act 1987

3A Children (Criminal Proceedings) Act 1987

(1), (2) (Repealed)

(3) An application to the Court under section 45 (1) of the Children (Criminal Proceedings) Act 1987 shall be made by motion in the proceedings in respect of the offence.

3B Registrar may exercise certain powers and functions

3B Registrar may exercise certain powers and functions

(1) Any power or function in relation to civil proceedings—

(a) that is conferred on a registrar by a provision of these rules referred to in rule 2, or

(b) that is conferred on a registrar by a provision of the Uniform Civil Procedure Rules 2005 referred to in rule 3, or

(c) that is required to be exercised by a registrar by an instrument under section 13 of the Civil Procedure Act 2005,

may be exercised by the registrar in relation to proceedings specified in the Third Schedule to the Act and proceedings to which Division 2 applies.

(2) This rule does not apply to a power or function that is required to be exercised by a registrar by an instrument under section 13 of the Civil Procedure Act 2005 if the instrument states, or necessarily implies, that the registrar may exercise the power or function in relation to civil proceedings only.

(3) In this rule, civil proceedings has the same meaning as it has in the Civil Procedure Act 2005.

3C Evidence taken outside the State

3C Evidence taken outside the State

Rule 1 shall not apply to proceedings under—

(a) Part 2 of the Foreign Evidence Act, or

(b) the Evidence on Commission Act 1995,

(to which proceedings Part 24 of the Uniform Civil Procedure Rules 2005 relates).

3D Form of indictment

3D Form of indictment

(1) An indictment may be in Form 74AE.

cf Act No 40, 1900, s 567.

(2) No indictment shall be held bad or insufficient for failure to comply with the form prescribed by subrule (1) or with subrule (2A).

cf Act No 40, 1900, s 360.

(2A) An indictment must specify the Law Part Code (if any) for each offence alleged to have been committed in the indictment.

(3) The rules, other than this rule and Form 74AE, shall not apply to an indictment in any other Court.

(4) In this rule—

Law Part Code for an offence means the Law Part Code allocated to the offence in the Lawcodes Database maintained by the Judicial Commission of New South Wales.

3E

3E–3G (Repealed)

3H Election under s132 of Criminal Procedure Act 1986

3H Election under s132 of Criminal Procedure Act 1986

(1) An election under section 132 (1) or (5) of the Criminal Procedure Act 1986 shall—

(a) be in the prescribed form,

(b) in the case of an election under section 16 (1)—be endorsed with the consent of the Director for Public Prosecutions given under section 16 (3), and

(c) be filed before the date fixed for the trial.

(2) Consent of the Director of Public Prosecutions may be endorsed under subrule (1) (b) by that Director or an officer authorised in writing by that Director to give such consents.

3HA Criminal proceedings

3HA Criminal proceedings

(cf former Part 27, rule 1B)

(1) If a person has been committed for trial or is to be dealt with before the Court, a proceeding between the prosecuting authority and the person is taken to be before the Court for the purposes of any application to the Court under section 6 or 20 of the Evidence on Commission Act 1995 or under section 7 of the Foreign Evidence Act 1994 of the Commonwealth.

(2) Any such application is to be made—

(a) in a proceeding which is before the Court under subrule (1)—by summons, or

(b) in proceedings which are specified in the Third Schedule to the Act—by motion in the proceedings as if the proceedings had been commenced by summons, or

(c) in proceedings in the Court in its summary jurisdiction—by motion in the proceedings.

(3) If a person has been committed for trial or to be dealt with before the District Court, a proceeding between the prosecuting authority and the person is taken to be before the District Court for the purposes of any application to the Court under section 9 or 23 of the Evidence on Commission Act 1995 or under section 10 of the Foreign Evidence Act 1994 of the Commonwealth.

3I Return of exhibits

3I Return of exhibits

Where proceedings specified in the Third Schedule to the Act or assigned by rule 3HA or by Part 75 have been concluded and—

(a) 28 days have expired since the conclusion, and

(b) there is no undisposed of appeal, or application for leave to appeal, in respect of the proceedings,

the registrar may, unless the Court otherwise orders, return any exhibits in the proceedings still in the custody of the registrar by forwarding them to the Director of Public Prosecutions.

3J Expert witnesses

3J Expert witnesses

(1) This rule and rule 3K apply to all criminal proceedings in the Court (including those specified in the Third Schedule to the Act).

(2) For the purposes of this rule and rule 3K—

expert witness means an expert engaged for the purpose of—

(a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or

(b) giving opinion evidence in proceedings or proposed proceedings.

the code means the expert witness code of conduct in Schedule 7 to the Uniform Civil Procedure Rules 2005.

(3) Unless the Court otherwise orders—

(a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert must provide the expert with a copy of the code, and

(b) unless an expert witness’s report contains an acknowledgment by the expert witness that he or she has read the code and agrees to be bound by it—

(i) service of the report by the party who engaged the expert witness is not valid service for the purposes of the rules or of any order or practice note, and

(ii) the report is not to be admitted into evidence, and

(c) oral evidence is not to be received from an expert witness unless—

(i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it, and

(ii) a copy of the acknowledgment has been served on all parties affected by the evidence.

(4) If an expert witness furnishes to the engaging party a supplementary report, including any report indicating that the expert witness has changed his or her opinion on a material matter expressed in an earlier report by the expert witness—

(a) the engaging party must forthwith serve the supplementary report on all parties on whom the engaging party has served the earlier report, and

(b) the earlier report must not be used in the proceedings by the engaging party, or by any party in the same interest as the engaging party on the question to which the earlier report relates, unless paragraph (a) is complied with.

(5) This rule does not apply to an expert engaged before this rule commences.

3K Conference between experts

3K Conference between experts

(1) The Court may do any or all of the following, with the consent of the parties—

(a) direct expert witnesses to confer (whether before or during a trial or other proceedings),

(b) specify the matters on which they are to confer,

(c) direct that they provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement,

(d) direct that such conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of legal representatives at the option of the parties respectively,

(e) give any additional directions as may be considered necessary.

(2) An expert who is the subject of an order made under subrule (1) may apply to the Court for further directions.

(3) The content of the conference between the expert witnesses is not to be referred to at the hearing or trial unless the parties affected agree.

(4) The parties may agree, at any time, to be bound by agreement on any specified matter. In that event, the joint report may be tendered at the trial as evidence of the matter agreed. Otherwise, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the Court.

(5) Where, pursuant to this rule, expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the Court, adduce expert evidence inconsistent with the matter agreed.

3L Recording of evidence

3L Recording of evidence

(1) This rule applies to all criminal proceedings in the Court (including those specified in the Third Schedule to the Act).

(2) Evidence given by a witness may be recorded by video or by any other audio-visual method as directed by the Court.

3M Entry of judgments and orders

3M Entry of judgments and orders

(1) This rule applies in relation to proceedings specified in the Third Schedule to the Act and to proceedings to which Division 2 applies.

(2) Any judgment or order of the Court is to be entered as soon as practicable after it is given or made.

(3) Unless subrule (4) applies, a judgment or order of the Court is taken to be entered when it is recorded in the Court’s computerised court record system.

Note—

The Court’s computerised court record system is JusticeLink.

(4) If a technical problem would prevent the timely entry of a judgment or order in accordance with subrule (3), a judgment or order of the Court is taken to be entered when a record of the judgment or order set out on the indictment for the proceedings, or on or in the appropriate court file, is signed by a Judge giving or making the judgment or order, the Judge’s associate or the registrar.

(5) In this rule—

(a) a reference to a judgment or order of the Court extends to a reference to a sentence, direction or recommendation of the Court, and

(b) a reference to a technical problem is a reference to a technical problem with, or in accessing, the Court’s computerised court record system (for example, if remote electronic access is required to enter a judgment or order on the system and there is a technical problem with computer equipment or internet connection).

5A

5A (Repealed)

10A Privilege

10A Privilege

(1) Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document or thing except production to the Court for the purpose of ruling on the objection.

(2) Where a question is put to a person in the course of examination, and any person makes and substantiates sufficient lawful objection on grounds of privilege to the question being answered, the Court shall not compel an answer to the question.

(3) Subrule (1) applies where an order is made for production to, and subrule (2) applies where a question is put to a person in the course of examination before, the Court or a Judge or any officer of the Court, or any examiner, referee, arbitrator or other person authorised to receive evidence, whether on a trial or hearing or on any other occasion.

(3A) Where a party to any proceedings claims privilege from production of any document, the Court may, if it thinks fit—

(a) permit evidence in relation to the claim to be given by any other party by affidavit or otherwise, and

(b) permit cross-examination on any affidavit used in support of the claim.

(4) This rule does not affect any rule of law which authorises or requires the withholding of any document or thing or the refusal to answer any question on the ground that the disclosure of the document or thing or the answering of the question would be injurious to the public interest.

(5) Subrules (1), (2) and (3) do not apply to an objection to produce any document or thing or to answer any question on the ground mentioned in subrule (4).

11B Defendant to plead

11B Defendant to plead

cf Act No 27 of 1902, s 78.

(1) Where the defendant appears at the hearing and has been provided with a written copy of the charges against him, the substance of the order under section 246 (1) of the subject Act shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him.

(2) If he thereupon admits the truth of the charges and shows no sufficient cause why he should not be convicted or why an order should not be made against him, the Judge shall convict him or make an order against him accordingly.

(3) If he does not admit the truth of the charges, the Judge shall proceed to hear the prosecutor and the witnesses whom he examines and such other evidence as he adduces in support of the charges and to hear the defendant and the witnesses whom he examines and such other evidence as he adduces in his defence.

Part 76

Parts 76, 77

(Repealed)

Part 78 Probate and administration

Part 78 Probate and administration

pt.78-div.3-sdiv.1 General provisions in relation to non-contentious proceedings

Subdivision 1 General provisions in relation to non-contentious proceedings

pt.78-div.3-sdiv.2 Evidence in support in non-contentious applications

Subdivision 2 Evidence in support in non-contentious applications

19 Application for grant of administration by some only of those entitled to administration

19 Application for grant of administration by some only of those entitled to administration

(1) If a grant of administration is applied for by some only of the persons within Australia who are entitled to administration, the application must, in relation to each such person not applying, be supported by—

(a) the written consent of that person to the grant of administration to the applicant, with an affidavit verifying the consent endorsed on the document containing the consent, or

(b) an affidavit as to service on that person of the applicant’s notice of intention to make such an application.

(2) Service of the notice referred to in subrule (1) (b) must have occurred at least 14 days before the proceedings commence.

(3) The affidavits and notice referred to in subrule (1) (b) may be served personally or by post.

20 Affidavit in support of application for administration generally

20 Affidavit in support of application for administration generally

(cf former Part 78, rule 24A)

(1) This rule applies to an application for the grant of administration made in respect of the estate of a person who died before 1 March 2010, other than—

(a) an application for the grant of administration with the will annexed, or

(b) an application for the grant of administration made by or on behalf of a de facto partner, or

(c) an application for the grant of administration under section 91 of the Succession Act 2006.

Note—

1 March 2010 was the date on which the provisions of the Probate and Administration Act 1898 referred to in subrule (3) (a) were repealed by the Succession Amendment (Intestacy) Act 2009.

(2) The affidavit in support of an application for the grant of administration made by or on behalf of any person (other than a de facto partner of the deceased) must show that the deceased did not leave a de facto partner for whom the estate, or any part of it, is required to be held under a statutory trust for de facto partners.

(3) In this rule, statutory trust for de facto partners means a trust for the benefit of a de facto partner—

(a) that arises under section 61B (3A) (a) or (3B) (a) or (b) (ii) of the Probate and Administration Act 1898 (as in force before 1 March 2010), or

(b) that, by operation of section 32G (2) of that Act, arises under any other provision of that Act (as so in force).

21 Evidence in support of application for administration by de facto partner

21 Evidence in support of application for administration by de facto partner

(cf former Part 78, rule 25A)

(1) This rule applies to an application for the grant of administration made by or on behalf of a de facto partner of the deceased in respect of the estate of a person who died before 1 March 2010, other than—

(a) an application for the grant of administration with the will annexed, or

(b) an application for the grant of administration under section 91 of the Succession Act 2006.

Note—

1 March 2010 was the date on which the provisions of the Probate and Administration Act 1898 referred to in subrule (3) (a) were repealed by the Succession Amendment (Intestacy) Act 2009.

(2) The affidavit in support of an application for the grant of administration made by or on behalf of a de facto partner must show that the estate, or some part of it, is required to be held under a statutory trust for de facto partners.

(3) The application must be supported by the written consent of each person who would be entitled to distribution of the estate if the deceased had not left a de facto spouse, or an affidavit of service on such a person of the applicant’s intention to make such an application.

(4) The provision of consents and service of notices is to be in accordance with rule 19.

(5) In this rule, statutory trust for de facto partners means a trust for the benefit of a de facto partner—

(a) that arises under section 61B (3A) (a) or (3B) (a) or (b) (ii) of the Probate and Administration Act 1898 (as in force before 1 March 2010), or

(b) that, by operation of section 32G (2) of that Act, arises under any other provision of that Act (as so in force).

22 Affidavit in support of application for administration—domestic partnerships

22 Affidavit in support of application for administration—domestic partnerships

(1) This rule applies to an application for a grant of administration made in respect of a person who died after 1 March 2010, other than—

(a) an application for a grant of administration with the will annexed, or

(b) an application for a grant of administration under section 91 of the Succession Act 2006.

(2) If the application is not made by a person claiming to have been a party to a domestic partnership with the deceased the affidavit in support of the application must show that the deceased did not leave a domestic partner who would be entitled to the estate or any part of it.

(3) If the application is made by a person claiming to have been in a domestic partnership with the deceased—

(a) the affidavit in support of the application must show that the applicant is entitled to the estate or some part of it, and

(b) the application must be supported by the written consent of each person who would be entitled to distribution of the estate if the deceased person had not left a partner to a domestic partnership, or an affidavit of service on such persons of notice of the applicant’s intention to make such an application.

(4) The provision of consents and service of notices is to be in accordance with rule 19.

(5) In this rule, domestic partnership has the same meaning as it has in section 105 of the Succession Act 2006.

23 Administration bonds

23 Administration bonds

(1) Before granting administration, the Court may require an administration bond to be filed.

(2) Unless the Court otherwise orders, an administration bond must have 2 sureties conditioned for duly collecting and getting in the deceased’s assets and administering the deceased’s estate.

24 Evidence in support of application for administration for the purposes only of Chapter 3 of the Succession Act 2006

24 Evidence in support of application for administration for the purposes only of Chapter 3 of the Succession Act 2006

(cf former Part 78, rule 26A)

If the plaintiff under an application referred to in section 91 of the Succession Act 2006 is aware of a proposal by any other person to make such an application, the affidavit in support must include a statement to the effect that notice of the plaintiff’s intended application was served on the other person at least 14 days before the application was made.

pt.78-div.3-sdiv.3 Proof of wills in non-contentious proceedings

Subdivision 3 Proof of wills in non-contentious proceedings

25 Application of Division

25 Application of Division

This Subdivision applies to proceedings in which the plaintiff seeks to prove a will.

26 Will not sufficiently attested

26 Will not sufficiently attested

(cf former Part 78, rule 15)

(1) If the will contains either no attestation clause or an insufficient attestation clause, the plaintiff must file an affidavit by one or more of the attesting witnesses to the due execution of the will.

(2) A plaintiff who is unable to comply with subrule (1) must file—

(a) an affidavit as to the reason for the inability, and

(b) a further affidavit by some other person who was present when the will was executed.

(3) A plaintiff who is unable to comply with subrule (1) or (2) must file an affidavit as to—

(a) the reason for the inability, and

(b) either—

(i) the signatures of the testator and the attesting witnesses, or

(ii) other facts from which it may be inferred that the will was duly executed.

27 Blind or illiterate testator’s will or will at another’s direction

27 Blind or illiterate testator’s will or will at another’s direction

(cf former Part 78, rule 16)

If the will was or appears to have been signed by—

(a) a blind or illiterate testator, or

(b) some other person at the testator’s direction,

the affidavit in support must include all available evidence as to the manner in which the will was executed and as to whether the testator knew and approved its contents.

28 Date of execution

28 Date of execution

(cf former Part 78, rule 18)

If the will is undated, the affidavit in support must include evidence establishing the date of its execution.

29 Interlineations, obliterations and alterations

29 Interlineations, obliterations and alterations

(cf former Part 78, rule 19)

If—

(a) there is any interlineation, obliteration or alteration in the will, and

(b) the interlineation, obliteration or alteration is not duly authenticated or otherwise validated,

the affidavit in support must include evidence establishing that the interlineation, obliteration or alteration was made before the will was executed.

30 Documents referred to or attached

30 Documents referred to or attached

(cf former Part 78, rule 20)

If—

(a) the will contains a reference to a document that suggests that the document forms part of the will, or

(b) there are marks on the will from which it appears that a document has been attached to it,

the affidavit in support must include all available evidence in regard to those circumstances.

31 Part of will paper torn off or cut off

31 Part of will paper torn off or cut off

(cf former Part 78, rule 21)

If it appears that any part of the material on which the will was written has been torn or cut off, the affidavit in support must include all available evidence (including the torn or cut-off part) in regard to those circumstances.

32 Burning, tearing or other sign of revocation

32 Burning, tearing or other sign of revocation

(cf former Part 78, rule 22)

If—

(a) it appears that there may have been an attempt to destroy the will by burning, tearing or otherwise, or

(b) there are other circumstances that suggest that the testator may have revoked the will,

the affidavit in support must include all available evidence in regard to those circumstances.

33 Inoperative will

33 Inoperative will

(cf former Part 78, rule 23)

If it appears that the will is or may be wholly or partly inoperative, whether by reason of the executors and beneficiaries all predeceasing the testator or otherwise, the affidavit in support must include evidence as to what persons would be entitled to distribution of the estate on intestacy.

34 Application of Division

34 Application of Division

(cf former Part 78, rule 35)

This Division applies to contentious proceedings.

35 Commencement of contentious proceedings

35 Commencement of contentious proceedings

(cf former Part 78, rule 36)

Subject to rule 72, contentious proceedings must be commenced—

(a) by statement of claim, if there is a defendant, or

(b) by summons, if there is no defendant.

36 Admissions

36 Admissions

(cf former Part 78, rule 37)

Rule 17.7 of the Uniform Civil Procedure Rules 2005 does not apply to contentious proceedings.

37 Disputes as to standing

37 Disputes as to standing

(cf former Part 78, rule 37A)

(1) If a defendant opposes the grant of probate or administration and the plaintiff intends to dispute the defendant’s standing to do so, the plaintiff’s pleadings must allege the absence of standing.

(2) If one party (the first party) has applied for the grant of administration and another party (the second party) alleges that the first party is not entitled to do so, the second party’s pleadings must allege facts that, if proved, would show that the second party is entitled to apply for such a grant.

Division 5 Proceedings affecting other persons’ interests

Division 5 Proceedings affecting other persons’ interests

38 Plaintiff sole executor

38 Plaintiff sole executor

(cf former Part 78, rule 34B)

(1) This rule applies to an application for an order under—

(a) section 10 (3) (c) of the Succession Act 2006, or

(b) section 13 (2) (c) of the Probate and Administration Act 1898, as in force before the repeal of that paragraph.

Note—

The provisions referred to in paragraph (b) were repealed, and replaced by the provisions referred to in paragraph (a), on 1 March 2008.

(2) The originating process for such an application need not join any person as a defendant—

(a) if the plaintiff is the sole executor or administrator, or

(b) if there is otherwise sufficient reason for not doing so.

(3) Despite subrule (2), the Court may, at any stage of the proceedings, direct that—

(a) any person be added as a party or substituted for another party or a former party, or

(b) notice of the proceedings be served on any person in addition to, or instead of, the defendant.

(4) Rule 7.6 of the Uniform Civil Procedure Rules 2005 applies to proceedings for an order referred to in subrule (1) in the same way as it applies to proceedings referred to in rule 7.6 (1) of those Rules.

39 Notice of proceedings to be served on certain persons

39 Notice of proceedings to be served on certain persons

(cf former Part 78, rule 34C)

(1) This rule applies to any proceedings on an application for the grant of probate or administration in which an application is made for an order under—

(a) section 10 (3) (c) or 27 (1) of the Succession Act 2006, or

(b) section 13 (2) (c), 15A (2) (a) or 29A (1) of the Probate and Administration Act 1898, as in force before the repeal of those provisions.

Note—

The provisions referred to in paragraph (b) were repealed, and replaced by the provisions referred to in paragraph (a), on 1 March 2008.

(2) The applicant for the grant of probate or administration—

(a) must file an affidavit showing the persons whose interests would be adversely affected if the order were made, and

(b) must serve a notice of proceedings on each such person within 28 days after the application for the order is made.

Note—

Division 9 (particularly Subdivisions 3, 4 and 5) apply to a notice of proceedings referred to in paragraph (b).

(3) Subrule (2) (b) does not require a notice of proceedings to be served on a person who has consented to the making of the order.

(4) Any document that the applicant intends to rely on as evidence of such consent must be filed.

40 Affidavit verifying consent

40 Affidavit verifying consent

(cf former Part 78, rule 34A)

Any document that the applicant intends to rely on as evidence of consent referred to in—

(a) section 10 (3) (b) of the Succession Act 2006, or

(b) section 13 (2) (b) of the Probate and Administration Act 1898, as in force before the repeal of that paragraph,

must be filed.

Note—

The provisions referred to in paragraph (b) were repealed, and replaced by the provisions referred to in paragraph (a), on 1 March 2008.

Division 6 Proceedings concerning informal testamentary documents

Division 6 Proceedings concerning informal testamentary documents

41 Application of Division

41 Application of Division

This Division applies to proceedings on an application for the grant of probate or administration in relation to a will that comprises or includes an informal testamentary document.

42 Consent of or notice to person affected

42 Consent of or notice to person affected

(cf former Part 78, rules 34E and 34G)

(1) The plaintiff must serve notice of the application (a prescribed notice) on each person whose interests may be affected by the Court’s decision as to the deceased’s intentions in relation to the informal testamentary document.

(2) Subrule (1) does not require a prescribed notice to be served—

(a) on the caveator under any caveat in force in respect of the informal testamentary document, or

(b) on any person who has consented to the grant of probate or administration to the plaintiff.

(3) Any consent referred to in subrule (2) (b) must be filed by the plaintiff.

(4) If the person whose interests are affected is a person under legal incapacity—

(a) subrule (2) (b) does not apply, and

(b) if the person has no tutor, service of a prescribed notice does not take effect until a tutor is appointed.

(5) The Court may dispense with compliance with subrule (1) on any of the following grounds—

(a) that the person affected cannot readily be ascertained,

(b) that the person affected, though ascertained, cannot readily be found,

(c) that it would be expedient to do so (having regard to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) so as to save expense.

Note—

Pursuant to rule 72, unless the Court otherwise directs, a caveator under any caveat in force in respect of an informal testamentary document is to be a party to proceedings for the grant of probate or administration that comprises or includes the informal testamentary document.

43 Appearance by person affected by informal testamentary document

43 Appearance by person affected by informal testamentary document

(cf former Part 78, rule 34H)

(1) A person on whom a prescribed notice has been served in relation to any proceedings may enter an appearance in the proceedings.

(2) Division 3 of Part 6 of the Uniform Civil Procedure Rules 2005 applies to appearance by the person as if the person were a defendant in the proceedings.

(3) Rule 12.11 of the Uniform Civil Procedure Rules 2005 does not apply to the proceedings.

(4) The time limited for the person to enter an appearance is—

(a) in the case of service within New South Wales, 14 days,

(b) in the case of service outside New South Wales, 28 days.

(5) An appearance may not be entered after the expiration of the time so limited except by the leave of the Court.

44 Person affected by informal testamentary document becomes party on entering appearance

44 Person affected by informal testamentary document becomes party on entering appearance

(cf former Part 78, rule 34I)

(1) This rule applies to a person on whom a prescribed notice has been served in relation to any proceedings if the person enters an appearance within the time limited for entering an appearance.

(2) On entering an appearance, the person becomes a defendant in the proceedings.

(3) The proceedings are to continue as if—

(a) the person had been joined as a defendant by the application for the grant of probate or administration, and

(b) the person had been served with that application on the day on which he or she was served with the prescribed notice.

(4) The person may only take part in—

(a) such parts of the proceedings as relate to the decision under—

(i) section 8 of the Succession Act 2006, or

(ii) section 18A of the Probate and Administration Act 1898, as in force before the repeal of that section,

in relation to the informal testamentary document, and

Note—

The provisions referred to in subparagraph (ii) were repealed, and replaced by the provisions referred to in subparagraph (i), on 1 March 2008.

(b) such other parts of the proceedings as the Court directs.

(5) The person ceases to be a defendant on the conclusion of those parts of the proceedings referred to in subrule (4).

45 Persons who are bound by Court’s decision on informal testamentary document

45 Persons who are bound by Court’s decision on informal testamentary document

(cf former Part 78, rule 34F)

(1) This rule applies if a decision is made under—

(a) section 8 of the Succession Act 2006, or

(b) section 18A of the Probate and Administration Act 1898, as in force before the repeal of that section,

in relation to an informal testamentary document.

Note—

The provisions referred to in paragraph (b) were repealed, and replaced by the provisions referred to in paragraph (a), on 1 March 2008.

(2) Subject to any order made by the Court, each of the following persons is bound by the decision made in relation to the informal testamentary document to the same extent as if he or she had been a party to the proceedings concerned when the decision was made—

(a) any person whose consent to the grant of probate or administration has been filed in relation to the document,

(b) any person whose interests may be affected by the Court’s decision as to the deceased’s intentions in relation to the document, but only if—

(i) a prescribed notice has been served on the person, or

(ii) the Court has, pursuant to rule 42 (5), dispensed with the requirement for service.

Note—

Pursuant to rule 60, subject to any contrary order, a person on whom a notice of proceedings has been served under rule 57 is also bound by the decision, as he or she is bound by all other orders and decisions made in the proceedings to which the decision relates, including orders and decisions made by consent or otherwise without a contested hearing.

Division 7 Proceedings for revocation of grant of probate or administration

Division 7 Proceedings for revocation of grant of probate or administration

46 Application

46 Application

This Division applies to proceedings for the revocation of a grant of probate or administration.

47 Commencement of proceedings with no defendant

47 Commencement of proceedings with no defendant

(cf former Part 78, rules 40 and 41)

If there is no defendant, the proceedings must be commenced by summons, and may be dealt with by the registrar in the absence of the public and without any attendance by or on behalf of any person.

48 Commencement of proceedings with defendant

48 Commencement of proceedings with defendant

(cf former Part 78, rule 43)

(1) If there is a defendant, proceedings for the revocation of a grant of probate or administration must be commenced by statement of claim.

(2) The statement of claim must allege facts that, if proved, would show that the plaintiff has standing to commence the proceedings.

49 Deposit of grant of probate or administration

49 Deposit of grant of probate or administration

(cf former Part 78, rules 38 and 39)

The Court may order an executor or administrator to deposit a grant of probate or administration in the registry—

(a) on the application of a person who intends to commence proceedings for the revocation of the grant, or

(b) if proceedings for the revocation of the grant have already commenced, on the application of the plaintiff or of its own motion.

Division 8 Proceedings for administration during minority

Division 8 Proceedings for administration during minority

50 Administration during minority

50 Administration during minority

(cf former Part 78, rule 29)

(1) The Court may grant administration during minority, for the use and benefit of a minor, to any of the following—

(a) the minor’s legal or testamentary guardian,

(b) a guardian assigned in accordance with rule 51,

(c) a guardian elected in accordance with rule 52.

(2) A grant of administration during minority is subject to such limitations and conditions as the Court thinks fit.

51 Assigned guardian

51 Assigned guardian

(cf former Part 78, rule 31)

(1) Any person may apply for an order assigning the person as a minor’s guardian for the purpose of applying for the grant of administration.

(2) The application may be made—

(a) except as provided by paragraph (b), by summons, or

(b) if proceedings on an application for the grant of administration have already been commenced, by notice of motion in the proceedings,

and may be dealt with by the registrar in the absence of the public and without any attendance by or on behalf of any person.

(3) There is to be no defendant in proceedings on a summons referred to in subrule (2) (a).

(4) The application must be supported by evidence of—

(a) the proposed guardian’s relationship, if any, to the minor, and

(b) the proposed guardian’s fitness and appropriateness to act as the minor’s guardian.

52 Elected guardians

52 Elected guardians

(cf former Part 78, rule 30)

(1) A minor who is aged 16 years or more may elect a guardian for the purpose of applying for the grant of administration.

(2) The elected guardian may also act for any other minor in the same family who is aged less than 16 years.

(3) Despite the election of a guardian, the Court may grant administration to any person referred to in rule 50 (1) (a) or (b) whom it considers more appropriate or better fitted to act as the minor’s guardian.

(4) An application for the grant of administration by a minor’s elected guardian must be supported by evidence of—

(a) the minor’s election, and

(b) the elected guardian’s fitness and appropriateness to act as the minor’s guardian.

Division 9 Notices

Division 9 Notices

pt.78-div.9-sdiv.1 Notice to apply for administration

Subdivision 1 Notice to apply for administration

53 Notice to apply for administration

53 Notice to apply for administration

(cf former Part 78, rule 51)

(1) For the purposes of section 63 of the Probate and Administration Act 1898, any person may require a person referred to in paragraph (a), (b) or (c) of that section to apply for administration of an intestate person’s estate, as referred to in that section.

(2) Such a requirement must be made by filing and serving on the person concerned a notice to apply for administration.

Note—

This notice, a “notice to apply for administration”, was formerly referred to as a “citation to pray for administration”.

54 Time for answer to notice

54 Time for answer to notice

(cf former Part 78, rule 54)

The time limited for answer to a notice to apply for administration is—

(a) in the case of service within New South Wales, 14 days,

(b) in the case of service outside New South Wales, 28 days.

pt.78-div.9-sdiv.2 Notice to apply for probate

Subdivision 2 Notice to apply for probate

55 Notice to apply for probate

55 Notice to apply for probate

(cf former Part 78, rule 52)

(1) For the purposes of section 69 of the Probate and Administration Act 1898, any person may require a named executor to take probate, as referred to in that section.

(2) Such a requirement must be made by filing and serving on the person concerned a notice to apply for probate.

Note—

This notice, a “notice to apply for probate”, was formerly referred to as a “citation to take probate”.

56 Time for answer to notice

56 Time for answer to notice

(cf former Part 78, rule 54)

The time limited for answer to a notice to apply for probate is—

(a) in the case of service within New South Wales, 14 days,

(b) in the case of service outside New South Wales, 28 days.

pt.78-div.9-sdiv.3 Notice of proceedings

Subdivision 3 Notice of proceedings

57 Notice of proceedings

57 Notice of proceedings

(cf former Part 78, rules 53 and 56)

(1) Subject to subrule (2), any party to proceedings for the grant of probate or administration may file and serve on any person having an interest adverse to the party a notice of proceedings.

Note—

This notice, a “notice of proceedings”, was formerly referred to as a “citation to see proceedings”.

(2) Such a notice must be filed and served on each person on whom such a notice is required to be served pursuant to any other provision of this Part or any direction of the Court.

(3) The notice must state that, if the person to whom it is addressed does not enter an appearance in the proceedings, the proceedings may be heard and determined in the person’s absence.

(4) Division 3 of Part 6 of the Uniform Civil Procedure Rules 2005 (rule 6.10 excepted) applies to appearance by a person on whom a notice of proceedings has been served in the same way as if the person were a defendant in the proceedings.

(5) If the person on whom the notice is served enters an appearance in the proceedings, he or she is entitled to the same notice of the hearing or trial of the proceedings as a defendant.

58 Election to be a defendant

58 Election to be a defendant

(cf former Part 78, rule 57)

(1) A person on whom a notice of proceedings has been served may include in his or her notice of appearance a statement that he or she elects to be a defendant in the proceedings.

(2) If the person makes such an election—

(a) he or she becomes a defendant in the proceedings, and

(b) the proceedings are to continue as if the person—

(i) had been joined as a defendant by the application for the grant of probate or administration, and

(ii) had been served with the application for the grant of probate or administration on the day on which he or she was served with the notice of proceedings.

59 Proof of service of notice of proceedings

59 Proof of service of notice of proceedings

(cf former Part 78, rule 60)

A party who has issued a notice of proceedings (the issuing party) is not entitled to be heard, except by leave of the Court, unless—

(a) the person to whom the notice is addressed (the addressee) has entered an appearance in the proceedings, or

(b) the issuing party has filed—

(i) an affidavit of service of the notice on the addressee, or

(ii) an affidavit stating that the notice has not been served on the addressee and explaining why it has not been served.

60 Persons served bound by certain orders and decisions

60 Persons served bound by certain orders and decisions

Subject to any order of the Court, any person on whom a notice of proceedings has been served is bound by all orders and decisions made in the proceedings concerned, including orders and decisions made by consent or otherwise without a contested hearing, and is so bound whether or not the person has elected to be a defendant in the proceedings or has entered an appearance in the proceedings.

Note—

This is a substantive change to the former law. See note to rule 45.

pt.78-div.9-sdiv.4 Notices served on persons under legal incapacity

Subdivision 4 Notices served on persons under legal incapacity

61 Service on persons under legal incapacity

61 Service on persons under legal incapacity

(cf former Part 78, rule 58)

(1) Service on a person under legal incapacity of a notice under this Division is to be effected in accordance with this rule.

(2) The notice may be served—

(a) if the person has a tutor, on the tutor, or

(b) if the person has no tutor, on someone with whom the person resides or in whose care the person is.

(3) If the person to be served is a minor, the notice may also be served—

(a) on the minor, but only if he or she is aged 16 years or more and is under legal incapacity by reason only of minority, or

(b) on a parent of the minor, or

(c) on a guardian of the minor’s person or estate.

(4) The notice may also be served on any person (including the person under legal incapacity) whom the Court may, before or after the service, approve.

(5) Service of the notice on a person under legal incapacity who has no tutor does not take effect until a tutor is appointed.

62 Notice to be answered by tutor

62 Notice to be answered by tutor

(cf former Part 78, rule 58)

(1) A person under legal incapacity may not answer a notice under this Division otherwise than by his or her tutor.

(2) If a person under legal incapacity has a tutor who has or may be given authority, under the NSW Trustee and Guardian Act 2009, to answer the notice on that person’s behalf, then, unless the Court otherwise orders, no person other than the tutor may answer the notice.

(3) If a notice of proceedings is served on a person under legal incapacity and that person’s tutor is appointed to answer the notice, the appointment extends to the tutor electing on that person’s behalf to become a defendant in the proceedings.

(4) If a person under legal incapacity elects by tutor to become a defendant in the proceedings, Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 applies as if the tutor had been appointed as provided by that Division.

63 Appointment of tutor

63 Appointment of tutor

(cf former Part 78, rule 59)

(1) Any person may apply for an order appointing the person as tutor for a person under legal incapacity.

(2) The application may be made—

(a) except as provided by paragraph (b), by summons, or

(b) if proceedings on an application for the grant of probate or administration have already been commenced, by notice of motion in the proceedings,

and may be dealt with by the registrar in the absence of the public and without any attendance by or on behalf of any person.

(3) There is to be no defendant in proceedings on a summons referred to in subrule (2) (a).

(4) A tutor must not be appointed unless—

(a) he or she is the person applying for appointment, or

(b) evidence of his or her consent to act as tutor has been filed.

(5) Subject to rule 62 (4), Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 does not apply to the appointment of a tutor under this rule.

pt.78-div.9-sdiv.5 General

Subdivision 5 General

64 Service generally

64 Service generally

(cf former Part 78, rule 55)

(1) A notice under this Division must be served personally.

(2) Part 11 of the Uniform Civil Procedure Rules 2005 does not apply to service of such a notice.

Note—

See also rule 61 in relation to service on persons under legal incapacity.

65 Assignment of case number

65 Assignment of case number

(1) A case number or unique identifier is to be assigned to a notice under this Division when it is accepted for filing.

(2) In the case of a notice for an estate in respect of which—

(a) proceedings for the grant of probate or administration have been commenced, or

(b) some other notice has been filed under this Division, or

(c) a caveat has been filed under Division 10,

the case number or other unique identifier is to be the same as that previously assigned to the proceedings, notice or caveat.

Division 10 Caveats

Division 10 Caveats

pt.78-div.10-sdiv.1 Caveat against grant of probate or administration

Subdivision 1 Caveat against grant of probate or administration

66 Caveat against grant of probate or administration

66 Caveat against grant of probate or administration

(cf former Part 78, rule 61)

(1) A person who claims an interest in an estate may file a caveat in respect of any grant of probate or administration, or resealing of a foreign grant, being made in respect of the estate.

(2) The caveat must state fully the nature of the interest claimed by the caveator and an address for service.

(3) If the caveator is aware that any other person is making, or is intending to make, an application for the grant of probate or administration, or the resealing of a foreign grant, in respect of the same estate, the caveator must, within 7 days after filing the caveat, serve a copy of the caveat on that other person.

pt.78-div.10-sdiv.2 Caveat concerning an informal testamentary instrument

Subdivision 2 Caveat concerning an informal testamentary instrument

67 Caveat concerning an informal testamentary instrument

67 Caveat concerning an informal testamentary instrument

(cf former Part 78, rule 62A)

(1) A person who claims to be a person whose interests may be affected by the Court’s decision as to the deceased’s intentions in relation to an informal testamentary document may file a caveat requiring an opportunity to be heard before the Court makes such a decision.

(2) Subrule (1) does not apply to a person who is a defendant in proceedings for the grant of probate or administration in relation to the deceased’s estate.

(3) The caveat may be lodged—

(a) at any time before service on that person of a copy of an application for the grant of probate or administration in relation to that estate, or

(b) by leave of the Court, at any time before the grant of probate or administration is made.

(4) The caveat must state fully the nature of the interest claimed by the caveator and an address for service.

(5) If the caveator is aware that any other person is making, or is intending to make, an application for the grant of probate or administration in respect of the same estate, the caveator must, within 7 days after filing the caveat, serve a copy of the caveat on that other person.

pt.78-div.10-sdiv.3 Caveat requiring proof in solemn form

Subdivision 3 Caveat requiring proof in solemn form

68 Caveat requiring proof in solemn form

68 Caveat requiring proof in solemn form

(cf former Part 78, rule 62)

(1) A person—

(a) who claims an interest in a deceased person’s estate as a beneficiary under a will, or

(b) who has an interest in a deceased person’s estate and who wishes to challenge an alleged will on the ground that the will has not been duly executed,

may file a caveat requiring proof in solemn form of any such will.

(2) The caveat must state fully the nature of the interest of the caveator and an address for service.

(3) If the caveator is aware that any other person is making, or intending to make, an application for the grant of probate or administration, or the resealing of a foreign grant, in respect of the same estate, the caveator must, within 7 days after filing the caveat, serve a copy of the caveat on that other person.

pt.78-div.10-sdiv.4 General

Subdivision 4 General

69 Duration of caveat

69 Duration of caveat

(cf former Part 78, rule 63)

(1) A caveat under this Division takes effect when it is filed and, unless the Court otherwise orders, lapses after 6 months.

(2) The Court may extend the duration of a caveat.

(3) Despite subrules (1) and (2), in any proceedings on an application for the grant of probate or administration in relation to a will that comprises or includes an informal testamentary document, a caveat concerning the informal testamentary instrument lapses when the caveator becomes a party to the proceedings.

Note—

Rule 72 (2) provides that, unless the Court otherwise directs, the caveator is to be a party to the proceedings.

70 Withdrawal of caveat

70 Withdrawal of caveat

(cf former Part 78, rule 64)

(1) The caveator in respect of any caveat under this Division may withdraw the caveat by filing a notice of withdrawal of caveat.

(2) The withdrawal of the caveat takes effect when the notice is filed.

71 Order that caveat cease to be in force

71 Order that caveat cease to be in force

(cf former Part 78, rule 69)

(1) If—

(a) a person has applied or intends to apply for the grant of probate or administration or the resealing of a foreign grant, and

(b) a caveat under this Division is in force in respect of any grant of probate or administration, or resealing of a foreign grant, being made in respect of the estate concerned,

the person may apply for an order that the caveat cease to be in force in relation to the application or intended application.

(2) An application under this rule must be made—

(a) except as provided by paragraph (b), by summons, or

(b) if the person has commenced proceedings for the grant of probate or administration, or the resealing of a foreign grant, by notice of motion in the proceedings.

(3) The caveator must be joined as a defendant in the proceedings on an application under this rule.

(4) If the Court considers that the evidence fails to show—

(a) that the caveator has an interest in the estate concerned, or a reasonable prospect of establishing such an interest, and

(b) that there is a doubt as to whether the grant of probate or administration should be made or whether the foreign grant should be resealed,

the Court may order that the caveat cease to be in force in respect of the application.

(5) Part 13 of the Uniform Civil Procedure Rules 2005 does not apply to the proceedings.

(6) If it does not order that the caveat cease to be in force in respect of the application, the Court may give such directions as appear best adapted for the just, quick and cheap determination of proceedings on the application, or intended application.

(7) Directions that the Court may give pursuant to subrule (6) include a direction to the caveator to commence proceedings.

(8) If the Court directs the caveator to commence proceedings, it may order that if the caveator does not commence proceedings within such time as the Court fixes, the caveat is to lapse, either generally or in respect of the application or intended application.

(9) An order under subrule (8) may be made at the time the caveator is directed to commence proceedings or at any subsequent time.

72 Certain proceedings to be commenced by statement of claim

72 Certain proceedings to be commenced by statement of claim

(cf former Part 78, rule 70)

(1) If a caveat under this Division is in force in respect of a deceased person’s estate, proceedings for the grant of probate or administration, or the resealing of a foreign grant, in respect of the estate, must be commenced by statement of claim.

(2) Unless the Court otherwise directs, the caveator is to be a party to the proceedings.

73 Service of documents on caveator

73 Service of documents on caveator

In the application of rule 10.5 of the Uniform Civil Procedure Rules 2005 to the service on a caveator of either of the following documents, namely—

(a) an application for an order referred to in rule 71,

(b) a statement of claim referred to in rule 72,

the caveator’s address for service is taken to be the address for service stated in the relevant caveat under rule 66, 67 or 68.

74 Assignment of case number

74 Assignment of case number

(1) A case number or unique identifier is to be assigned to a caveat under this Division when it is accepted for filing.

(2) In the case of a caveat for an estate in respect of which—

(a) proceedings for the grant of probate or administration have been commenced, or

(b) some other caveat has been filed under this Division, or

(c) a notice has been filed under Division 9,

the case number or other unique identifier assigned to the caveat is to be the same as that previously assigned to the proceedings, caveat or notice.

Division 11 Accounts and commission

Division 11 Accounts and commission

75 Definitions

75 Definitions

In this Division—

commission means commission referred to in section 86 of the Probate and Administration Act 1898.

parent proceedings, in respect of an estate the subject of proceedings for the passing of accounts, means the proceedings in which—

(a) probate or administration has been granted, or

(b) a foreign grant has been resealed,

in respect of the estate.

proceedings for the passing of accounts means proceedings for an order passing accounts under section 85 of the Probate and Administration Act 1898.

76 Commencement of proceedings

76 Commencement of proceedings

(cf former Part 78, rule 75)

(1) Proceedings for the passing of accounts for an estate must be commenced by notice of motion in the parent proceedings.

(2) The notice may, but need not, request the Court to allow the applicant to be paid commission from the assets of the estate.

77 Further requirements where applicant seeks commission

77 Further requirements where applicant seeks commission

(cf former Part 78, rule 85)

If the applicant seeks commission he or she must file with the notice of motion commencing the proceedings—

(a) an affidavit in support of the application, and

(b) where the accounts were not filed within the time fixed by the rules or any order of the Court, an affidavit explaining the delay.

78 Objection prior to proceedings

78 Objection prior to proceedings

(cf former Part 78, rule 77A)

(1) At any time prior to the commencement of proceedings for the passing of accounts for an estate in respect of which—

(a) probate or administration has been granted, or

(b) a foreign grant has been resealed,

any person (the objector) may, by filing a notice of his or her intention to do so, object to the passing of accounts or the allowance of commission, as the case may be.

(2) The address for service shown in the notice is taken to be the objector’s address for service in any such proceedings.

(3) On the commencement of any such proceedings, the registrar must serve a copy of the notice on the applicant.

(4) As soon as practicable after being served with such a copy, the applicant in any such proceedings must serve a copy of the originating process on the objector.

79 Notice of proceedings

79 Notice of proceedings

(cf former Part 78, rules 76 and 87)

(1) At least 14 days before the commencement of proceedings for the passing of accounts, the applicant must cause to be published a notice of—

(a) the filing of the accounts, and

(b) the order or orders claimed in the proceedings.

(2) The notice must be published on the New South Wales Online Registry website.

(3) The applicant must file an affidavit of compliance with this rule.

(4) The Court may order the applicant to give notice of the proceedings to any person.

80 Sureties

80 Sureties

(cf former Part 78, rule 77)

(1) At least 14 days before the commencement of proceedings for the passing of accounts for an estate in respect of which an administration bond has been executed under section 64 of the Probate and Administration Act 1898, the plaintiff must serve on each surety to the bond a copy of the notice referred to in rule 79 (1).

(2) The plaintiff must file an affidavit of compliance with subrule (1).

(3) Instead of or in addition to complying with subrules (1) and (2) in respect of any surety, the plaintiff may file the consent of the surety to an order passing the accounts, with an affidavit verifying the consent endorsed on the document containing the consent.

81 Inspection and appearance

81 Inspection and appearance

(cf former Part 78, rule 78)

(1) This rule applies if proceedings for the passing of accounts have been commenced but the hearing of the proceedings has not been completed.

(2) Any person may inspect the accounts at any time after the commencement of the proceedings, without leave, unless the registrar otherwise directs.

(3) Any person intending to object to the passing of the accounts may, at any time before completion of the hearing, enter an appearance in the proceedings.

(4) Any person entering an appearance in the proceedings is to be joined as a respondent in the proceedings.

82 Vouching

82 Vouching

(cf former Part 78, rule 79)

Unless the Court otherwise directs, accounts are to be vouched—

(a) in the absence of the public, and

(b) without the appearance before the Court of any person, and

(c) without an appointment being obtained for the vouching.

83 Court may require further evidence, documents and notices

83 Court may require further evidence, documents and notices

(cf former Part 78, rule 80)

In any proceedings for the passing of accounts, the Court—

(a) may require further evidence to be furnished, further documents to be filed and further notices to be given, and

(b) if satisfied that the accounts are correct, may make an order passing the accounts, and

(c) if satisfied that any commission that is sought is appropriate, may make an order allowing commission.

84 Certificate as to passing of accounts

84 Certificate as to passing of accounts

(cf former Part 78, rule 81)

(1) If the Court makes an order passing accounts, the registrar is to issue the applicant with a certificate as to the balance of the accounts.

(2) If the Court makes an order allowing commission, the certificate must also certify as to—

(a) the amount of capital realised, and

(b) the amount of income collected, and

(c) the value of any assets transferred to beneficiaries, and

(d) where a business was carried on, the gross receipts and net profit earned or loss incurred,

during the period to which the accounts relate.

85 Time for filing etc accounts under section 85 of P&A Act

85 Time for filing etc accounts under section 85 of P&A Act

(cf former Part 78, rules 71 and 73)

(1) For the purposes of section 85 (1) and (1AA) of the Probate and Administration Act 1898, the time within which accounts for an estate in respect of which—

(a) probate or administration has been granted, or

(b) a foreign grant has been resealed,

must be filed, verified and filed or verified, filed and passed, as the case requires, is 12 months after the relevant grant or resealing.

(2) An executor or administrator may, in the proceedings for the grant of probate or administration or the resealing of a foreign grant, move for an order extending the period for compliance with section 85 (1) or (1AA) of the Probate and Administration Act 1898, including an order extending the period until the further order of the Court, without the prior filing or service of notice of the motion.

Note—

These rules do not fix a time limit under section 85 (1A), (1B) or (5) of the Probate and Administration Act 1898. Subject to any order made by the Court, no time limit will therefore apply under those subsections.

86 Renunciation of commission under section 86 (3) of P&A Act

86 Renunciation of commission under section 86 (3) of P&A Act

(cf former Part 78, rule 86)

If, in any proceedings for the passing of accounts, the applicant wishes to renounce his or her right to commission—

(a) the applicant may do so, at any time before the hearing of the proceedings, by filing a renunciation of commission, and

(b) if the applicant does so, the accounts must be allowed in accordance with the indemnity referred to in section 86 (3) of the Probate and Administration Act 1898.

Note—

Under section 86 (3) of the Probate and Administration Act 1898, an executor, administrator or trustee who renounces their right to commission for work carried out in relation to a deceased’s estate, and engages a legal practitioner to do that work (being non-professional work) on their behalf, is entitled to be indemnified by the estate, up to the amount of commission to which they would otherwise be entitled, for the legal practitioner’s charges and disbursements in connection with that work.

87 Reduction of excessive commission under section 86A of P&A Act

87 Reduction of excessive commission under section 86A of P&A Act

(cf former Part 78, rule 75A)

Proceedings for an order under section 86A of the Probate and Administration Act 1898 are to be commenced by notice of motion in the parent proceedings.

88 Notices and orders under section 87 of P&A Act

88 Notices and orders under section 87 of P&A Act

(cf former Part 78, rule 72)

(1) A notice or order under section 87 of the Probate and Administration Act 1898 may be served by sending it to the executor, administrator or trustee concerned at his or her address for service in relation to the parent proceedings.

(2) If an order has been made under section 87 of the Probate and Administration Act 1898 requiring an executor, administrator or trustee to show cause, any application for an order extending the period referred to in section 87 (1) of that Act must be made on the day appointed for showing cause.

89 Order to file etc accounts

89 Order to file etc accounts

(cf former Part 78, rule 74)

Proceedings for an order that an executor, administrator or trustee of a deceased person’s estate do any of the following—

(a) file an inventory,

(b) verify and file an inventory,

(c) file accounts,

(d) verify and file accounts,

(e) file and pass accounts,

(f) verify, file and pass accounts,

(g) pass accounts filed,

must be commenced by notice of motion in the parent proceedings.

Division 12 Forms

Division 12 Forms

90 Form of appointment: section 75A of P&A Act

90 Form of appointment: section 75A of P&A Act

(cf former Part 78, rule 90)

The following documents under section 75A of the Probate and Administration Act 1898 must be in the approved form—

(a) a notice of appointment of the NSW Trustee and Guardian or a trustee company by an executor or administrator,

(b) a deed of appointment of the NSW Trustee and Guardian or a trustee company by an executor or administrator,

(c) a notice of objection to the appointment of the NSW Trustee and Guardian or a trustee company by an executor or administrator.

91 Affidavit of additional assets: section 81A of P&A Act

91 Affidavit of additional assets: section 81A of P&A Act

(cf former Part 78, rule 28A)

Disclosure of assets and liabilities under section 81A (1) and (2) of the Probate and Administration Act 1898 must be effected by filing an affidavit of assets or an affidavit of additional assets, as the case requires.

92 Form of acknowledgment: section 83 of P&A Act

92 Form of acknowledgment: section 83 of P&A Act

(cf former Part 78, rule 89)

An acknowledgment for the purposes set out in section 83 of the Probate and Administration Act 1898 must be in the approved form.

93 Form of notice of intended distribution

93 Form of notice of intended distribution

(cf former Part 78, rule 91)

A notice under section 92 of the Probate and Administration Act 1898, section 93 of the Succession Act 2006 or section 60 of the Trustee Act 1925 must be published—

(a) if the notice relates to the intended distribution of the estate of a deceased person in relation to which a grant of representation has been made or resealed by the Court, on the New South Wales Online Registry website, or

(b) in any other case, in a Sydney daily newspaper.

Note—

The form currently approved under section 17 of the Civil Procedure Act 2005 for a notice of intended distribution is Form 114 of the forms approved under that section.

Division 13 Functions of registrar

Division 13 Functions of registrar

94

94

(1) The registrar may exercise the functions of the Court, in respect of all proceedings under the Probate and Administration Act 1898, Chapter 2 of the Succession Act 2006 or this Part, in relation to the estates of deceased persons, otherwise than—

(a) on the hearing of proceedings for contempt, or

(b) on the hearing of an application for an order authorising a will to be made or altered, or for a will or part of a will to be revoked, by a minor, or

(c) on the hearing of an application for an order authorising a will to be made or altered, or for a will or part of a will to be revoked, on behalf of a person who lacks testamentary capacity, or

(d) on the hearing of an application for leave to make an application referred to in paragraph (c), or

(e) on the hearing of an application for an order under section 67 or 89 of the Probate and Administration Act 1898, or

(f) on the hearing of contested proceedings for—

(i) the grant of probate or administration, or

(ii) the resealing of a foreign grant, or

(iii) the rectification of a will, or

(iv) the determination of whether an interested witness can benefit under a will, or

(v) the determination of whether an informal testamentary document forms the deceased’s will, an alteration of the deceased’s will or a full or partial revocation of the deceased’s will, or

(vi) an order under section 68, 84 or 84A (1) of the Probate and Administration Act 1898, or

(vii) an order under rule 51 or 71.

(2) If the Court refers any matter to the registrar, the registrar may exercise the functions of the Court in respect of that matter.

(3) The registrar may exercise the functions of the Court in respect of—

(a) proceedings for the revocation of a grant of probate in common form where the grant was made in error, and

(b) proceedings for the revocation of a grant of probate where the application for revocation is not contested, and

(c) proceedings for the passing of accounts, or the allowance of commission, under Division 11, and

(d) proceedings under section 21 of the Status of Children Act 1996 for a declaration of parentage in connection with uncontested proceedings for the grant of probate or administration, or for the resealing of a foreign grant.

Part 79 Court of Disputed Returns

Part 79 Court of Disputed Returns

Part 80 Companies (New South Wales) Code and Corporations Law

Part 80 Companies (New South Wales) Code and Corporations Law

1B Corporations Law: affidavit (s 459E (3))

1B Corporations Law: affidavit (s 459E (3))

An affidavit referred to in Section 459E (3) of the Corporations Law must—

(a) be made—

(i) by the person serving the demand,

(ii) where the demand is served by more than one person—by one of those persons,

(iii) where the, or a, person serving the demand is a corporation—by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation, or

(iv) where the person serving the demand is the Crown—by an officer of the Crown having knowledge of the facts so far as they are known to the Crown,

(b) set out the facts entitling the deponent under paragraph (a) to make the affidavit,

(c) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,

(d) state that the deponent believes those matters to be true, and

(e) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.

1C Corporations Law: affidavit (s 459Q (c))

1C Corporations Law: affidavit (s 459Q (c))

An affidavit referred to in Section 459Q (c) of the Corporations Law must—

(a) be made—

(i) by the plaintiff,

(ii) where there is more than one plaintiff—by one of them,

(iii) where the, or a, plaintiff is a corporation by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation, or

(iv) where the plaintiff is the Crown—by an officer for the Crown having knowledge of the facts so far as they are known to the Crown,

(b) set out the facts entitling the deponent under paragraph (a) to make the affidavit,

(c) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,

(d) state that the deponent believes those matters to be true, and

(e) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.

1D Corporations Law: affidavit (s 596C)

1D Corporations Law: affidavit (s 596C)

(1) An affidavit referred to in section 596C of the Corporations Law must set out—

(a) the facts relied on to establish that the applicant is an eligible applicant for the purposes of section 596B,

(b) the facts relied on to establish the matters referred to in section 596B (1) (b), and

(c) if production of books is to be required—the deponent’s belief that the books, the production of which is sought, are reasonably required for the purposes of the examination, and the grounds for that belief.

(2) A summons under section 596A or 596B of the Corporations Law shall be in Form 154A.

Division 2A Part II of the Code

Division 2A Part II of the Code

8A Appeal from Board (s 30R)

8A Appeal from Board (s 30R)

cf CR 1968, r 39.

The Companies Auditors and Liquidators Disciplinary Board may, on application in writing made to it before the expiration of the time (other than the time extended by the Court) for instituting an appeal from its decision under section 30R of the Code, grant, by notice in writing, an extension of that time and where it does so, it shall deliver the notice to the applicant who shall file the notice with the summons instituting the appeal.

22A Notice to liquidator of appointment

22A Notice to liquidator of appointment

(1) Where an order for the winding up of a Company is made, the plaintiff shall—

(a) complete two forms of notice in Form 135A,

(b) leave a copy with, and obtain a sealed copy from, the proper officer of the Court,

(c) serve the sealed copy on the liquidator appointed—

(i) where the order is made before noon—before 5 in the afternoon,

(ii) where the order is made in the afternoon—before noon of the following day.

(2) A sealed copy is sufficiently served on a liquidator within the time prescribed in subrule (1) (c) if the information contained in the copy is transmitted to the liquidator’s facsimile transmission number by a means that reproduces, in the hands of the liquidator, that information as it appears in the copy.

23A

23A (Repealed)

24A Validation of dispositions of property etc (s 368)

24A Validation of dispositions of property etc (s 368)

An application for an order under section 368 (2) of the Code (which subsection relates to the validation of dispositions of property etc) shall be made by motion in the proceedings for the winding up order.

61A Irregularities (s 539)

61A Irregularities (s 539)

Subject to any direction of the Court, an application for an order under section 539 of the Code in or for the purposes of or in relation to any proceedings in the Court may be made by motion in those proceedings.

Part 80A Corporations Law and ASC Law

Part 80A Corporations Law and ASC Law

Division 6A Remuneration of receiver, administrator and special manager

Division 6A Remuneration of receiver, administrator and special manager

13A Remuneration of receiver (s 425 (1))

13A Remuneration of receiver (s 425 (1))

(1) The summons or notice of the motion, by which application is made by a receiver for an order fixing his or her remuneration under section 425 (1), must not be filed until the expiration of 21 days after the applicant has served notice in Form 154I of his or her intention to apply for the order, together with a copy of the affidavit on which the applicant intends to rely, on—

(a) the person who appointed the receiver,

(b) any other creditor holding security over all or any of the same property,

(c) any liquidator or provisional liquidator of the subject corporation,

(d) any administrator of the subject corporation,

(e) any administrator of a deed of company arrangement executed by the subject corporation, and

(f) if there is no person of the kinds referred to in (c), (d) and (e)—

(i) each of the 5 largest unsecured creditors of the subject corporation, and

(ii) each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.

(2) Any creditor or contributory or any of the persons referred to in paragraphs (c), (d) and (e) of subrule (1) may within 21 days after service of the last of the notices required by subrule (1) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.

(3) Where the applicant files with the summons or notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days—

(a) proving service of the notices required by subrule (1) (b), and

(b) stating that he or she has received no notice of objection to the remuneration claimed,

and the summons or notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.

(4) The summons or notice of motion must be served on any creditor or contributory or other person who has given notice of objection under subrule (2).

(5) The evidence in support of the application must include an affidavit stating—

(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and

(b) if at the time of the application the applicant remains the receiver, any matters delaying the completion of the receivership.

13B Remuneration of administrator (s 449E (1))

13B Remuneration of administrator (s 449E (1))

(1) The summons or notice of the motion, by which application is made for an order fixing an administrator’s remuneration under section 449E (1), must not be filed until the expiration of—

(a) 28 days after the date when a meeting of creditors referred to in section 449E (1) was last held, and

(b) 21 days after the applicant has served notice in Form 154I of his or her intention to apply for the order, together with a copy of the affidavit on which the applicant intends to rely, on—

(i) each creditor who was present in person or by proxy at the meeting of creditors,

(ii) each member of any committee of inspection, and

(iii) each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.

(2) Any creditor or contributory may within 21 days after service of the last of the notices required by subrule (1) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.

(3) Where the applicant files with the summons or notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days—

(a) proving service of the notices required by subrule (1) (b), and

(b) stating that he or she has received no notice of objection to the remuneration claimed,

and the summons or notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.

(4) The summons or notice of motion must be served on any creditor or contributory who has given notice of objection under subrule (2).

(5) The evidence in support of the application must include an affidavit stating—

(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and

(b) if at the time of the application the applicant remains the administrator, any matters delaying the completion of the administration.

13C Remuneration of special manager (s 484 (2))

13C Remuneration of special manager (s 484 (2))

(1) The summons or notice of the motion, by which application is made by a special manager for an order fixing his or her remuneration under section 484 (2), must not be filed until the expiration of 21 days after the applicant has served notice in Form 154I of his or her intention to apply for the order, together with a copy of the affidavit on which the applicant intends to rely, on—

(a) the liquidator,

(b) each member of any committee of inspection, or if there is no committee of inspection, each of the 5 largest creditors of the subject corporation, and

(c) each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.

(2) The liquidator or any creditor or contributory may within 21 days after service of the last of the notices required by subrule (1) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.

(3) Where the applicant files with the summons or notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days—

(a) proving service of the notices required by subrule (1) (b), and

(b) stating that he or she has received no notice of objection to the remuneration claimed,

and the summons or notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.

(4) The summons or notice of motion must be served on the liquidator or any creditor or contributory who has given notice of objection under subrule (2).

(5) The evidence in support of the application must include an affidavit stating—

(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and

(b) if at the time of the application the applicant remains the special manager, any matters delaying the completion of the special management.

Part 81

Part 81

1–40 (Repealed)

Part 82 Public Notaries Act 1997

Part 82 Public Notaries Act 1997

Part 83

Part 83

1–5 (Repealed)

Part 84 Crimes (Administration of Sentences) Act 1999

Part 84 Crimes (Administration of Sentences) Act 1999

Schedule A

Schedules A–C (Repealed)

Schedule D Powers of associate Judges

Schedule D Powers of associate Judges

Pt 60, r 1A.

Part 2 Limitations of powers under provisions of the rules

Part 2 Limitations of powers under provisions of the rules

| Column 1 | Column 2 | Column 3 | | Rules of court and provision | Description | Extent of power | | Supreme Court Rules 1970— | | | | Part 14A | Technology and Construction List | | | Part 49— | | | | Rule 3 (4) (b) | Discharging or varying judgment or order. | | | Part 54 | Prerogative and other orders | Where paragraph 5 of Part 3 of this Schedule applies. | | Part 55— | | | | Rules 2, 4, 6, 8, 13, 14. | Contempt in the face or hearing of the Court. | Where paragraph 6 of Part 3 of this Schedule applies. | | Rule 10 | Arrest | | | Part 60 | associate Judges | | | Part 68— | | | | Rule 8 (2) | General administration of an estate. | | | Rule 9 | Conduct of sale of property | | | Part 69 | Infants’ Custody and Settlements Act Rules. | | | Part 70— | | | | Rule 9 (1) | Affidavit of fitness of new trustee. | | | Rule 11 (3) | Joining a defendant | | | Rule 14 | Notice of payment into Court | | | Rule 15 | Inquiries relating to application of funds. | | | Part 73 | Adoption of Children | | | Part 75 | Criminal proceedings | | | Part 76 | Protective business | Except as provided in Part 76. | | Part 78 | Probate | Under Part 78 rules 38, 59, 69, 71 and 72. | | Uniform Civil Procedure Rules 2005— | | | | Part 51 | Court of Appeal | |

Part 3 General

Part 3 General

5B

5B

An appeal from a Local Court in any civil matter.

17A

17A

Trial (except with a jury) of proceedings in the Common Law Division on a claim in which—

(a) damages are claimed in respect of the death of or personal injuries to any person,

(b) damages are claimed in respect of damage to property and—

(i) the proceedings include a claim in respect of the death of or personal injuries to any person, and

(ii) if separate proceedings were brought in respect of—

(A) the claim referred to in subparagraph (i), and

(B) the claim in respect of damage to property,

some common question of fact would arise in both claims, or

(c) contribution is claimed under Part III of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of damages of the nature referred to in paragraph (a) or (b).

Schedule E

Schedule E (Repealed)