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2012 Announcements

New Probate Forms

On 3 December 2012, the Supreme Court Rules Committee approved amendments to the Supreme Court Rules that replace the existing Probate Rules in Part 78. This amendment also repeals the existing probate forms in Schedule F of the Supreme Court Rules. See Supreme Court Rules (Amendment No 421) 2012(2012-606) - published LW 7 December 2012.

On 3 December 2012, the Uniform Rules Committee approved new probate forms under section 17 of the Civil Procedure Act 2005 . The new approved probate forms (forms 116 to 149) and a new version of form 111 (version 3) will take effect from Monday, 21 January 2013.

Generally the content of the new forms reflects the content of the old prescribed probate forms, although the wording has been updated to reflect the new rules. The new approved forms should be used in relation to any new probate proceedings commenced after 21 January 2013, and in relation to any documents filed in existing proceedings after that date. Any documents filed before 21 January 2013 that are in the format of the new approved forms will be accepted by the Supreme Court Registry.

The profession is asked to provide feedback in relation to the content and usability of the new probate forms. This feedback will be used in considering future amendments to the Forms. This feedback can be sent to the Court by email to: SupremeCourt.Feedback@courts.nsw.gov.au


Change to Form 54 - Examination Order

 
The Uniform Rules Committee has approved an amendment to Form 54 to include the judgment creditor's contact information. The inclusion of this information will administratively assist the Sheriff when the judgment creditor needs to be contacted (when the order has been served, or if the order has not been able to be served). Examination orders are usually generated by the Registry by using JusticeLink. The relevant system changes to allow the new version of Form 54 to be generated are being progressed. In the meantime, version 1 of Form 54 (without the judgment creditor's contact information) will continue to be used by registries and will remain a valid document.

Changes to forms that include an affidavit

The following forms have been amended to include a jurat and certificate in the affidavit part of the form to comply with requirements of the Oaths Act Regulation 2011:

  • 3A Statement of claim - filing party legally represented
  • 3B Statement of claim - filing party acting in person or by authorised officer
  • 7A Defence - filing party legally represented
  • 7B Defence - filing party acting in person or by authorised officer
  • 8 Reply
  • 9 Statement of cross-claim
  • 11 List of documents
  • 22 Statement of answers to interrogatories
  • 36 Notice of motion - default judgment on claim for possession of land
  • 36A Notice of Motion - default judgment on claim for possession of land and liquidated claim
  • 37 Notice of motion - default judgment for detention of goods
  • 38 Notice of motion - default judgment for liquidated claim
  • 39 Notice of motion - default judgment for unliquidated damages
  • 46 Notice of motion to pay by instalments - individual
  • 47 Notice of motion to pay by instalments - corporation
  • 53 Notice of motion - examination order
  • 57 Notice of motion - arrest warrant for examination
  • 59 Notice of motion - writ for possession of land
  • 61 Notice of motion - writ for restitution
  • 63 Notice of motion - writ for the delivery of goods
  • 65 Notice of motion - writ for the levy of property
  • 69 Notice of motion - garnishee order
  • 73 Notice of motion - charging order


Reminder of new requirements under the Oaths Act and Oaths Regulation 2011

From 30 April 2012 amendments to the Oaths Act and the Oaths Act Regulation 2011 require that witnesses to affidavits are required to certify as to the identity of the deponent. The approved forms of affidavit ( form 40) , and affidavit of service ( form 41) under the Uniform Civil Procedure Rules have been amended to incorporate a certificate that complies with the requirement of the regulation. The other other Uniform Civil Procedure Rule forms that incorporate an affidavit have not yet been amended, but the requirement to certify the identity of the deponent still applies. A form of jurat (the part of an affidavit for the signatures of the deponent and witness), that incorporates a certificate under the Oaths Regulation 2011 has been published. This jurat can be used by pasting it into any forms that include an affidavit to replace the existing jurat section. This jurat can also be used for affidavits that are not approved forms under the Uniform Civil Procedure Rule. Witness Certificate under Oaths Regulation 2011


Changes to approved Forms 26A, 27A and 29

In March 2012 the Uniform Rules Committee approved changes to the following forms:

  • Form 26A Subpoena to produce with subpoena notice and declaration
  • Form 27A Subpoena to give evidence and produce with subpoena notice and declaration
  • Form 29 Order for production

Form 26A and Form 27A have been amended in relation to the part of the form that deals with proposed access orders. The amended wording makes it clear that the default access order that will be made is the one that is appropriate for the jurisdiction that the subpoena is being issued in. Forms 26A and Form 27A have also been amended by removing a reference to "clear days" in the instructional note appearing after the 2nd paragraph in the Notice to the Subpoena Recipient. The relevant rule (rule 33.3(8)) does not refer to clear days, and it is not appropriate to construe the rule as requiring clear days.

Form 29 has been amended to remove an instructional footnote in the Notice to Producing Party that the last date for service of the order had to be 5 clear days before the return date of the order.

Changes to Form 40, Form 41 and other UCPR Forms that incorporate an affidavit

In March 2012 the Uniform Rules Committee approved amendments to the UCPR forms that include an affidavit. The amended forms will become effective on 30 April 2012 when amendments to the Oaths Act, and the Oaths Act Regulation 2011 become effective. The Oaths Act Regulation requires the witness to an affidavit to certify on the affidavit that they have identified the deponent. A certificate complying with the Regulation has been included in the affidavit forms. The new versions of Form 40 and Form 41 are published below

Form 40 - Affidavit

PDF

W​ord

Form 41 - Affidavit of Service

PDF

Word


The footnotes appearing at the bottom of the page on which the certificate appears are enclosed in brackets to indicate that the text of the footnotes is instructional and that it is optional as to whether the text needs to be printed on the affidavit document. Affidavits should be prepared so that the jurat and certificate does not appear on a page by itself; ideally the jurat and certificate should appear on a page where at least some of the text of the body of the affidavit appears.

The following forms will also be amended to include a jurat and certificate in the affidavit part of the form in the same format as that appearing in Form 41 version 2. The amended forms will be published on the UCPR website at a later date:

  • 3A Statement of claim - filing party legally represented
  • 3B Statement of claim - filing party acting in person or by authorised officer
  • 7A Defence - filing party legally represented
  • 7B Defence - filing party acting in person or by authorised officer
  • 8 Reply
  • 9 Statement of cross-claim
  • 11 List of documents
  • 22 Statement of answers to interrogatories
  • 36 Notice of motion - default judgment on claim for possession of land
  • 36A Notice of Motion - default judgment on claim for possession of land and liquidated claim
  • 37 Notice of motion - default judgment for detention of goods
  • 38 Notice of motion - default judgment for liquidated claim
  • 39 Notice of motion - default judgment for unliquidated damages
  • 46 Notice of motion to pay by instalments - individual
  • 47 Notice of motion to pay by instalments - corporation
  • 53 Notice of motion - examination order
  • 57 Notice of motion - arrest warrant for examination
  • 59 Notice of motion - writ for possession of land
  • 61 Notice of motion - writ for restitution
  • 63 Notice of motion - writ for the delivery of goods
  • 65 Notice of motion - writ for the levy of property
  • 69 Notice of motion - garnishee order
  • 73 Notice of motion - charging order