i Magistrates' Court Civil Procedure (Amendment No. 1) Rules 1999 S.R. No. 121/1999 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Judgment creditor to serve copy of proposed record of examination 1 6. Attachment of earnings notice 2 7. Extent of employers liability under an attachment of earnings order 2 8. Notice to judgment creditor 2 9. Statement of affairs by corporation 2 10. Statement of affairs by corporation 2 11. Statement of affairs by corporation 2 12. New Rule 35.02.1 3 35.02.1 Registrar's power of amendment 3 13. Amendment of Forms 27D and 27E 3 14. Substitution of Forms 27CC and 27CD 3 15. New form of attachment of earnings order 15 16. Substituted Forms 28A, 28B and new Form 28BA 17 17. Amendments to Appendix A 28 ═══════════════ NOTES 30
Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Judgment creditor to serve copy of proposed record of
examination 1 6. Attachment of earnings notice 2 7. Extent of employers liability under an attachment of earnings
order 2 8. Notice to judgment creditor 2 9. Statement of affairs by corporation 2 10. Statement of affairs by corporation 2 11. Statement of affairs by corporation 2 12. New Rule 35.02.1 3
35.02.1 Registrar's power of amendment 3 13. Amendment of Forms 27D and 27E 3 14. Substitution of Forms 27CC and 27CD 3 15. New form of attachment of earnings order 15 16. Substituted Forms 28A, 28B and new Form 28BA 17 17. Amendments to Appendix A 28
debtor is a corporation, not less than 7 days before the day fixed for the examination.".
6. Attachment of earnings notice Rules 27.19(2) and (3) of the Principal Rules are revoked.
7. Extent of employers liability under an attachment of earnings order
After Rule 27.20(1.1) of the Principal Rules insert—
"(1.2) If at the time of an application under paragraph (1.1) the judgment debtor is not employed by the employer against whom an order is sought to be made, any order against the employer must not exceed the normal deductions that ought to have been deducted by the employer under a binding order under paragraph (1) whilst the judgment debtor was employed by that employer.".
8. Notice to judgment creditor (1) In Rule 27.24(2) of the Principal Rules after
"registrar" insert "and the judgment creditor".
(2) In Rule 27.24(3) of the Principal Rules after "registrar" insert "and the judgment creditor".
9. Statement of affairs by corporation In Rule 28.02 of the Principal Rules, in paragraph (b), after "Form 28B" insert "or in Form 28BA if the judgment debtor is a corporation".
10. Statement of affairs by corporation In Rule 28.03(1) of the Principal Rules, in paragraph (b), after "Form 28B" insert "or in Form 28BA if the judgment debtor is a corporation".
For Forms 27CC and 27CD of the Principal Rules substitute—
"RULE 27.12.1 FORM 27CC
EXAMINATION OF A JUDGMENT DEBTOR
[heading as in Form 4A]
[name of person being examined], having been sworn, has answered the questions set out in Column 1 below in the manner set out in Column 2 below.
Column 1 Questions
Column 2 Answers
1. What is your full name?
2. What is your date of birth?
3. What is your home address and phone number? Do you own, rent or board at this address? Give name, address and phone number of the estate agent or landlord.
4. Do you propose to change your address in the near future? If so, state the new address.
5. Are you single, married or living in a defacto relationship?
6. How many dependents do you have in your care? What is their relationship to you and what are their ages?
7. Do you own or are you buying any land or building? If yes, give details, including— (a) address(es);
(b) value; (c) mortgage (naming financier and balance due);
(d) 2nd mortgage (naming financier and balance due);
(c) the address and telephone number of your employer?
11. What income do you receive after tax and compulsory superannuation is deducted?
What is the nature of this income(e.g. wages, salary, commission, benefit, etc.)?
Is this income received weekly, fortnightly, monthly, or otherwise?
Do you receive overtime or other allowances? If you are unemployed, what is your source of income? (e.g. sole parent benefit, disability pension, WorkCover)?
12. (a) If unemployed, how long have you been unemployed?
(b) What is the name of your previous employer? (c) Will you be starting employment in the near future? If so, give details.
13. What other source of income do you have? Give details of all sources and amounts (e.g. part- time work, casual work, dividends, rent, etc.).
14. Have you any accounts at any bank/building society/credit union, etc.? If yes, give details of each account— (a) name and address of financial institution;
(b) name of account; (c) type of account; (d) account number; (e) present balance of account. If account is not held solely by you, state name/address/phone number of each other person with whom the account is jointly held.
15. How much cash money do you have readily available?
Column 1 Questions
Column 2 Answers
16. Have you any personal property or assets not previously mentioned? If so, give details,
including— investments, shares, debentures; superannuation, life insurance policy; motor boats, caravans, trailers (give descriptions of the boat, caravan, trailer including the registration number and value)
If any of this personal property or asset is held with another person, give the name and address of the other person.
17. Give details of your expenses calculated on a weekly basis, including— (a) rent/mortgage/board;
(b) food; (c) gas/electricity; (d) clothing; (e) loan repayments etc. (give details of each loan and the balance owing)
Balance $
(f) credit card repayments; (give details of each card and the balance owing)
Balance $
(g) house and contents insurance; (h) municipal and water rates; (i) telephone; (j) car expenses; (including registration, insurance and maintenance)
(k) fuel expenses of running your motor vehicle; (l) education expenses; (m) medical/dental/pharmaceutical; (n) entertainment expenses; (o) other (and what) expenses.
Total: $____________
Are there any persons who contribute to the expenses detailed above? If so, who are they and how much do they contribute?
$____________
Column 1 Questions
Column 2 Answers
18. Are there any other unpaid court orders/fines against you? If so, give details including— (a) name/address/phone number of party to
whom money is owed; (b) date of court order; (c) amount outstanding; (d) court and reference number (if any).
19. What other moneys do you owe, not previously mentioned?
20. Are you an owner or do you have an interest in any business? If yes, give details, including— (a) What is the name of the business? Is it a registered business name? Is there an ACN and if so what is the ACN?
(b) If you have partners give the full name and address of each partner and state each partner's percentage share (including your own) of the business;
(c) If a private company, state the number of shares you hold and give the name and address and number of shares of each other shareholder;
(d) What is the value of the goodwill of the business? When was the goodwill last valued?
(e) What assets does the business have? Give details of all— (i) real estate, listing— (a) locations (addresses) (b) values (c) mortgages;
(ii) plant and equipment (not included elsewhere) listing— (a) a description
Column 1 Questions
Column 2 Answers
(b) locations (c) values (d) are there any claims against these items (e.g. finance, etc.);
(a) make/model/condition (b) registration number (c) lease or other finance details (d) value; (iv) stock (not included elsewhere), listing— (a) a description (b) locations (address) (c) values (d) are there any claims against these items (e.g. finance, etc.);
(v) other deposits, investments, shares and debentures giving for each details of value and in what business/corporation/ firm;
You have been served with a Summons to Attend for Oral Examination (Form 27CA) and an Examination Sheet (Form 27CC).
The Examination Sheet sets out the questions you will be asked. It may assist you to complete the answers to the questions before the examination is conducted. You will not have to swear that the answers on this Examination Sheet are true until the examination is conducted.
Care must be taken to provide complete and accurate answers as you will be required to take an oath as to the accuracy of the answers on the day of the examination and the information you provide will be forwarded to the judgment creditor/judgment creditor's solicitors.
If you have difficulty in completing any of the answers or have any other queries about the proceedings, you may contact the Magistrates' Court of Victoria for advice.
Payment toward the judgment debt must be made to the judgment creditor/judgment creditor's solicitor.
_______________
RULE 27.12.1 FORM 27CD
EXAMINATION OF AN OFFICER OF A JUDGMENT DEBTOR WHICH IS A CORPORATION
[heading as in Form 4A]
[name of person being examined], an officer of the judgment debtor corporation, having been sworn, has answered the questions set out in Column 1 below in the manner set out in Column 2 below.
account give details, including— (a) name of bank etc.; (b) type of account; (c) account number; (d) name of account; (e) present balance of account.
12. Do you produce a balance sheet of the corporation? If yes— (a) is it the most up to date balance sheet available?
(b) does the balance sheet reflect the corporation's present position? (give differences).
13. What other assets does the corporation have? Give details of all— (1) real estate, listing— (a) locations (addresses); (b) values; (c) mortgages (and financier).
(2) plant and equipment (not included else where) listing— (a) a description; (b) locations (addresses); (c) values; (d) are there any claims against these items (e.g. finance, etc.).
Column 1 Questions
Column 2 Answers
(3) motor vehicles, listing for each— (a) make/model/condition; (b) registration number; (c) lease or other finance details; (d) value.
(4) stock (not included elsewhere), listing— (a) a description; (b) locations (address); (c) values; (d) are there any claims against these items
14. Is there a registered debenture over the assets of the corporation? If yes, identify the debenture holder, state when the debenture was given and state the amount secured by the debenture.
15. Are there any other unpaid court orders/fines against the corporation? If so, give details of each court order/fine including— (a) (for court orders) name/address/phone number of party to whom the money is owed;
(b) date of court order/fine; (c) amount outstanding; (d) reference number (if any).
16. What other monies does the corporation owe, not previously mentioned?
17. Has the corporation paid any/all of the amount ordered? If so, how much and when?
Column 1 Questions
Column 2 Answers
18. Do you produce a profit and loss statement for the corporation? If yes— (a) is it the most up to date profit and loss statement available?
(b) does the profit and loss statement reflect the corporation's present position? (detail differences).
19. Does the corporation have a proposal to pay the amount claimed by the judgment creditor?
I order the judgment debtor to pay the sum of $ being the costs of this examination.
Filing fee $ Hearing fee $ Conduct money $ Service fee (including attempt(s) and travelling) $ Professional costs $
TOTAL $
[Signature of Registrar]
IMPORTANT PRE-EXAMINATION INFORMATION
To the officer of the judgment debtor corporation
You have been served with a Summons to Attend for Oral Examination (Form 27CA) and an Examination Sheet (Form 27CD).
The Examination Sheet sets out the questions you will be asked. It may assist you to complete the answers to the questions before the examination is conducted. You will not have to swear that the answers on the Examination Sheet are true until the examination is conducted.
Care must be taken to provide complete and accurate answers as you will be required to take an oath as to the accuracy of the answers on the day of the examination and the information you provide will be forwarded to the judgment creditor/judgment creditor's solicitors.
If you have difficulty in completing any of the answers or have any other queries about the proceedings, you may contact the Magistrates' Court of Victoria for advice.
Payment toward the judgment debt must be made to the judgment creditor/judgment creditor's solicitor.".
15. New form of attachment of earnings order For Forms 27L, 27M and 27N of the Principal Rules substitute—
'Rule 27.18(6) FORM 27L
ATTACHMENT OF EARNINGS ORDER
[heading as in Form 4A]
THE COURT ORDERS THAT:
1. [name] of [address], the employer of the [judgment debtor] ("the judgment debtor") on each pay day whilst this order is in force, subject to paragraph 2 of this order, deduct from the earnings of the judgment debtor, the sum of $ [amount per week/fortnight/month] ("the normal deduction rate") until a total sum of $ [amount] has been deducted and remit each payment made under this order to [name and address of person to whom payments are to be made].
2. The protected earnings rate, that is, the rate below which the earnings of the judgment debtor may not be reduced by a payment under this order, shall be $ [amount] per [week/fortnight/month].
3. A deduction on a pay day is only to be made if the net earnings of the judgment debtor exceed the protected earnings.
4. If any deduction is not made from the judgment debtor's earnings on any pay day (or is not made in full) by reason of the protected earnings rate, the employer shall make good such deduction from the excess of any subsequent earnings of the judgment debtor.
5. The employer may deduct each pay day $ [amount] for clerical and administrative costs in complying with this order.
6. In the event that—
(a) you are not the employer of the judgment debtor;
(b) if you were the employer of the judgment debtor at the time of service of this order but have since ceased to be the employer—
you must give written notice of such fact (and the date you ceased to be the employer of the judgment debtor), to the registrar of the Magistrates' Court of Victoria at [venue] and to the judgment creditor at [address of judgment creditor or judgment creditor's solicitor].
1. The first deduction required to be made under this order is on the first pay day following 7 days after the day of service of this order.
2. "Earnings" attached by this order means, in relation to a judgment debtor—
(a) by way of wages or salary, including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary; or
(b) by way of pension, including—
(i) an annuity in respect of past services whether or not the services were rendered to the person paying the annuity; and
(ii) periodical payments in respect of or by way of compensation
for the loss, abolishment or relinquishment, or any diminution in the emoluments, of any office or employment—
but does not include any pension payable to the judgment debtor under the Commonwealth Acts known as the Social Security Act 1947 as amended from time to time, the Veterans' Entitlements Act 1986 as amended from time to time or the Seamen's War Pensions and Allowances Act 1940 as amended from time to time.
3. Where you are or have been served with two or more attachment of earnings orders, you are required to—
(a) comply with those orders according to the respective day on which they took effect and disregard a subsequent order until an earlier order has been complied with; and
(b) comply with any order as if the earnings to which it relates were residue of the earnings of the judgment debtor after the making of any payment under an earlier order.
4. You are required to give the judgment debtor a notice specifying particulars of the payments made by you under this attachment of earnings order.
5. You are required to give the judgment debtor notice of any deductions made under paragraph 5 of this order.
WARNING:
1. It is an offence to fail to comply with an attachment of earnings order. The maximum penalty for non-compliance is 60 penalty units or 6 months imprisonment or both.
2. It is an offence to dismiss an employee or injure an employee or alter an employee's position to the prejudice of the employee because of the making of an attachment of earnings order or because of a requirement to make payments under an attachment of earnings order. The maximum penalty is 5 penalty units.
3. If you fail to comply with this order, the judgment creditor may apply to the court to have you the employer liable to pay the deductions.'.
16. Substituted Forms 28A, 28B and new Form 28BA For Forms 28A and 28B of the Principal Rules substitute—
* an instalment order; * an instalment order in substitution of a previous instalment order; * the variation of an instalment order (section 8); * the cancellation of an instalment order (section 8).
1. Details of Applicant (*Debtor/*Creditor)
Name: Address:
Postcode
Telephone: Home Business
2. Details of Respondent (*Debtor/*Creditor)
Name:
3. State:
(a) amount ordered Claim Interest Costs
$ $ $
Total (judgment debt) $
LESS (b) amount paid since order of / / (State amounts and dates paid)
–
$
EQUALS (c) balance of judgment debt owing
=
$
PLUS (d) interest on the judgment debt until the date of this application
+
$
PLUS (e) any other amounts recoverable or payable in respect of the order of / / (including any costs of warrant);
1. IF THE APPLICANT IS THE JUDGMENT DEBTOR, A STATEMENT OF AFFAIRS TO THE EFFECT OF FORM 28B (OR FORM 28AB IF A CORPORATION) MUST BE FILED WITH THIS APPLICATION.
2. A COPY OF THIS APPLICATION AND, IF THE APPLICATION IS BY THE JUDGMENT DEBTOR A STATEMENT OF AFFAIRS, MUST BE SERVED ON THE RESPONDENT PARTY.
3. IF YOU DO NOT UNDERSTAND THIS DOCUMENT, YOU SHOULD OBTAIN LEGAL ADVICE IMMEDIATELY. YOU MAY ALSO NEED TO OBTAIN FINANCIAL COUNSELLING.
* Delete if not applicable
_______________
RULE 28.02 28.03 28.05
FORM 28B
STATEMENT OF AFFAIRS BY AN INDIVIDUAL
(Judgment Debt Recovery Act 1984)
IN THE MAGISTRATES' COURT OF VICTORIA AT
Court Number
Judgment Creditor
and
Judgment Debtor
To the Registrar,
1. Amount and Source of Weekly Income (*Complete (a)—(c) where applicable)
AN INSTALMENT ORDER THAT IS MADE AS A RESULT OF A FALSE STATEMENT MAY BE VARIED OR CANCELLED
_______________
RULE 28.02 28.03 28.05
FORM 28BA
STATEMENT OF AFFAIRS BY AN OFFICER OF A CORPORATION
(Judgment Debt Recovery Act 1984)
IN THE MAGISTRATES' COURT OF VICTORIA AT
Court number
Judgment Creditor
and
Judgment Debtor
1. State the address of the registered office of the judgment debtor corporation?
2. Is the corporation still trading? If no, when did it last trade?
3. What is the corporation's average weekly turnover?
4. Is the corporation owed any money? If yes, give details including— (a) who owes the money? (b) the address, telephone number and reference of the person or corporation;
(c) how much is owed? (d) what are the circumstances that give rise to the indebtedness? (e) when is the debt due and payable to the corporation? Give details.
5. Give details of the corporation's accounts at any bank/building society/credit union/etc.? For each account give details, including— (a) name of bank etc.; (b) type of account; (c) account number; (d) name of account; (e) present balance of account.
6. Do you produce a balance sheet of the corporation? If yes— (a) is it the most up to date balance sheet available? (b) does the balance sheet reflect the corporation's present position? (give differences).
7. What other assets does the corporation have? Give details of all— (1) real estate, listing— (a) locations (addresses); (b) values; (c) mortgages.
(2) plant and equipment (not included elsewhere), listing— (a) a description; (b) locations (addresses); (c) values; (d) are there any claims against these items, eg. finance, etc.
(3) motor vehicles, listing for each— (a) make/model/condition; (b) registration number; (c) lease or other finance details;
(4) stock (not included elsewhere), listing— (a) a description; (b) locations (address); (c) values; (d) are there any claims against these items, eg. finance, etc.
(5) other deposits, investments, shares and debentures, giving for each details of value and in what business/corporation/ firm.
(6) forward orders and/or pending contracts.
(7) trademarks, labels, intellectual property.
8. Is there a registered debenture over the assets of the corporation? If yes, identify the debenture holder, state when the debenture was given and state the amount secured by the debenture.
9. Are there any other unpaid court orders/fines against the corporation? If so, give details of each court order/fine including— (a) (for court orders) name/address/phone number of party to whom the money is owed; (b) date of court order/fine; (c) amount outstanding; (d) reference number (if any).
10. What other monies does the corporation owe, not previously mentioned?
11. Do you produce a profit and loss statement for the corporation? If yes— (a) is it the most up to date profit and loss statement available? (b) does the profit and loss statement reflect the corporation's present position (detail differences)?
12. Give details of any other circumstances which affect the financial position of the corporation.
Full name: Position held in judgment debtor corporation:
WARNING
AN INSTALMENT ORDER THAT IS MADE AS A RESULT OF A FALSE STATEMENT MAY BE VARIED OR CANCELLED".
17. Amendments to Appendix A In Appendix A to the Principal Rules—
(a) after item 28 insert— "28A. (a) Summons for Attachment of Earnings, including
instructions, preparation of summons, affidavit and Form 27F, issuing summons, arranging service, forwarding summons and affidavit to Registrar with a letter (including affidavit of service)
(b) Preparation, filing and serving Form 27L
(c) Preparation of order to attend or to give a statement under Rule 27.16 issue and arranging service.";
(b) in Table 1, for item 21 substitute— "21. (a) 29 50 71 83 105 126
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