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See UCPR 38.6 for more information.
You can apply to the Court for an Arrest Warrant for Examination if:
1️⃣ The Judgment Debtor has failed to attend court for an Examination; and
2️⃣ You wish to apply for an arrest warrant that will authorise the Sheriff’s officer to bring the Judgment Debtor to court to be examined; and
3️⃣ It has been at least 14 days, but no later than 3 months, after the court has served a Notice on the Judgment Debtor that failure to attend for examination may result in the person’s arrest.
(cf Act No 9 1973, section 92; Act No 11 1970, section 42; DCR Part 32, rule 6; LCR Part 28, rule 7)
A warrant issued under section 97 of the Civil Procedure Act 2005 as a consequence of a person's failure to comply with an order for examination referred to in rule 38.3--
(a) may be issued or revoked by the court of its own motion or on the application of the person in whose favour a judgment or order has been given or made, and
(b) MUST be expressed to expire no later than 3 months after the date on which it is issued, and
(c) may not be issued in relation to a person's failure to comply with an order for examination earlier than 14 days, nor later than 3 months, after the court has served notice on the person to whom the order for examination is addressed that failure to attend for examination may result in the person's arrest.
Unless the Uniform Civil Procedures Rules (NSW) 2005 (UCPR) provide otherwise, you MUST prepare a Notice of Motion if you are making an interlocutory or other application in the proceedings (see UCPR 18.1).
The courts receive large numbers of some types of applications (e.g. an application for default judgment on a liquidated claim).
The Uniform Rules Committee has approved specific forms for the more common types of Notice of Motion.
You MUST use the specific form if one has been approved for the type of application you are making to the court.
✅ Suitable for the NSW Courts under the Uniform Civil Procedure Rules (NSW) 2005;
✅ Recommended only for use by legal professionals +/or at a minimum with review by a legal professional prior to filing with the Court;
✅ This Notice of Motion is normally an application dealt with by the Court under UCPR 38.6 who will decide to grant or refuse the application.
Embedded Lawyer-Logic™ dynamically adapts to your answers to provide valuable guidance and help you avoid errors.
See UCPR 18.3 for more information about how to describe the persons who are filing or who are affected by a Notice of Motion.
[Form 57] includes an Affidavit in Support.
The Judgment Creditor MUST fill out each section of the included Affidavit in Support and sign the Affidavit stating that the information completed is true.
For detailed instructions regarding properly making the Affidavit please refer to this FAQ.
Schedule 1 of the Civil Procedure Regulation 2017 (NSW) sets out the amount the Court charges for filing a Notice of Motion.
As at 1 July, 2023 the NSW Supreme Court website states that there is a filing fee of $1,436 for a Notice of Motion for an Examination Order.
No filing fee applies for a Notice of Motion for an Examination order related to the Enforcement of a Foreign Judgment.
As a Filing Fee applies for Corporation Matters, it is assumed that no filing fee applies for a Notice of Motion for an Arrest Warrant related to an Individual Examination.
We recommend further investigation directly with the Court for confirmation.
Schedule 1 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) sets out the amounts you are entitled to claim for Solicitors’ Fees in each of the NSW Courts.
Costs on issue of warrant for arrest of judgment debtor including drawing/typing/checking of notice of motion for issue of warrant:
Supreme Court ➲ Not Listed
District Court ➲ $278
Local Court ➲ $199
Unless the Court orders otherwise, there is no requirement to serve the Notice of Motion on the Judgment Debtor.
You MUST include the following information if the court orders that the Notice of Motion has to be served by a particular time.
You MUST include the street address, postal address and telephone number of the court registry.
You should copy the registry street address, postal address and telephone number from the statement of claim or summons, or
If relevant, include details of the street address, postal address and telephone number of the registry where the court has transferred the proceedings.
The type of Notice of Motion you are filing with the NSW Courts will determine whether a specific UCPR form is required to be filed, and what documents are required to be filed in support.
In short, due to the complexities involved in determining which form of Notice of Motion to use, together with the crucial importance of getting the details of the motion and supporting documentation right to the success of your motion:
➲ We recommend you contact our legal team to obtain legal advice and guidance regarding which:
⚖️ Forms are required due to the type of Notice of Motion is being made; and which
⚖️ NSW Courts Practice Note (if any) applies; and accordingly which
⚖️ Documents MUST or may be filed in support of your Notice of Motion.
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You (the deponent) make an Affidavit by swearing or affirming that the Affidavit’s contents are true before a witness who must be one of the following:
• Sign in the presence of the witness
• Sgn the foot of each page (excluding annexures)
• Initial any alterations, additions or erasures.
You or the witness MUST:
• Write or type the date in the title at the top of the front page of the Affidavit and in the introductory paragraph of the Affidavit
• Delete the word ‘Affirmed’, if you have taken an oath OR delete the word ‘Sworn’, if you have made an affirmation.
Following this, the witness MUST sign:
• underneath the words ‘Sworn (or Affirmed) at [place]’
• at the foot of each page of the Affidavit (although there is no need for the witness or deponent to sign the first page if it is only the title page of the Affidavit, containing none of the substance)
• the certificate endorsed on any annexure
• the certificate attached to any exhibit.
The witness must initial any alterations, additions or erasures (see UCPR 35.5).
The Affidavit MUST include:
• the witnesses’ name and address
• the JP’s registration number, if relevant.
If the witness is a JP, the JP may provide his or her registration number as a JP in place of the JP’s address.
JPs must write their registration number on any document they sign or witness as a JP in accordance with the “Guidelines for Justices of the Peace” developed in accordance with requirements under the Justices of the Peace Act 2002 (NSW) and the Justices of the Peace Regulation 2014 (NSW) and outlined in the Justices of the Peace Handbook.
If the witness is a notary public, the notary public must apply his or her seal.
Where an Affidavit or witness statement is being taken and the deponent or the witness requires an interpreter, the interpreter must give a certification in the form contained within the forms.
See UCPR 35.6 for more information.
If you are annexing documents to an Affidavit, you must include a certificate on the annexure that contains the following information.
The certificate must not be on a separate page from the annexure.
The pages of the Affidavit and the annexures must be consecutively numbered in a single series of numbers.
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