S. 1. Short title and division INTER-STATE DEBTS RE- TABLE Showing how the sections of Acts consolidated have been dealt with. ACT No. XLVIII., 1901. An Act to consolidate the Acts relating to the enforcement in New South Wales of Judgments obtained in other Australian States or New Zealand, and the recovery of judgments against debtors who have removed thereto from New South Wales. [Assented to, 13th November, 1901]. BE E it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows: PART I. 1. This Act may be cited as the "Inter-state Debts Recovery Act, 1901," and is divided into Parts, as follows: PART I.-PRELIMINARY-ss. 1-5. PART II.-ENFORCEMENT OF INTERSTATE SUPREME COURT JUDGMENTS-ss. 6-11. PART III.-DISTRICT COURT PROCEEDINGS AGAINST PERSONS PART IV. CERTIFYING DISTRICT COURT JUDGMENTS FOR S. 1. 2. (1) The Acts mentioned in the First Schedule hereto are Repeal. hereby repealed. pro (2) All proclamations heretofore made, and all ceedings heretofore taken under any Act hereby repealed, shall be deemed to have been made and taken hereunder. First Schedule. 3. In this Act, unless the context or subject-matter other- Interpretation. wise indicates or requires,-- 19 Vic. No. 12, s. 1. s. 1. "Clerk" means clerk, registrar, or other proper officer of the 52 Vic. No. 23, State" means a State of the Commonwealth of Australia or 4. This Act, except Part II thereof, shall be read with the Act to be read District Courts Act, 1901. Courts Act. any State in Act is in force. 52 5. (1) If in any State there be any law in force by which Governor may effect may be given by the local courts thereof to the judgments of apply Act to the district courts of New South Wales, the Governor may by which a similar proclamation declare that the provisions of this Act shall apply to 2 Vic. No. 23, the judgments of the local courts of such State, and that process s. 2. issuing out of such local courts may be served in New South Wales, and that certificates of judgment obtained in district courts in New South Wales may, at the request of the judgment. creditors, be forwarded to such State. (2) Thereupon the provisions of this Act shall so apply, and the registrars of district courts shall, subject to the provisions of this Act, give certificates of judgments obtained in such courts for registration in the local courts of such State. (3) This section shall not apply to Part II of this Act. PART II. ENFORCEMENT OF INTERSTATE SUPREME COURT JUDGMENTS. judgment of Supreme Court may be filed of 6. (1) Any person in whose favour a judgment has been Memorial of obtained in the Supreme Court of any State may cause a memorial of the same, authenticated by the seal of such court, to be filed in the office of the Supreme Court of New South Wales. (2) Such memorial shall thenceforth be a record of such judgment. Judgment.-The judgment must be final and not merely interlocutory: Splatt v. Splatt, (1885) 2 W.N. 18; Splatt v. Splatt, (1889) 10 N.S.W.R. 227; 6 W.N. 58. of any State record. 19 Vic. No. 12 s. 1. S. 7. Form and contents of memorial. 7. Such memorial shall be on parchment and signed by the person in whose favour such judgment was obtained, or by his attorney, and shall contain the following particulars, all of which shall be fairly written without interlineations or erasures and 19 Vic. No. 12, with the exception of dates in words at length, that is to say— s. 2. Summons to show cause. Ibid. s. 3. (a) the names and additions of the parties; (b) the form and nature of the action or suit or other proceeding; (c) when the same was commenced; (d) the date of the signing or entering up of the judgment, (ƒ) if there was a trial, the date of such trial and the amount Signed by.-The signature need not be verified by affidavit : Warner v. Fischer, (1875) 13 S.C.R. 346. Attorney. The memorial of a foreign judginent cannot be signed by a firm of attorneys, but must be signed by the attorney on the record; The word "attorney" in this section does not mean person acting under a power of attorney, but means the attorney on the record: Hickie v. Carrol and another, (1894) 15 N.S.W.R. 113 ; 10 W.N. 207. The attorney is the attorney in the other state, see Heussler v. Rohde, (1890) 6 W.N. 129. Written. The provisions of this section requiring the statement of the particulars to be written in words at length are imperative: Bank of New Zealand v. Proudfoot (1885), 6 N.S.W.R. 177; 2 W.N. 14; Splatt v. Splatt (1885), 2 W.N. 18. Names and additions.—The names of the parties must appear: Brown v. Holmes, (1888) 4 W.N. 191. The additions must also be stated in the memorial, otherwise the Court will not allow execution to issue: Berry v. Shead, (1886) 7 N.S.W.R. 39 ; 2 W.N. 54; Young v. Hicks, (1886) 3 W.N. 53; Higgott v. Lyon and others, (1894) 10 W.N. 130. " The form and nature of the action.-In Gillman v. Holmes, (1888) 4 W.N. 190, the memorial stated under the heading "The form and nature of the action that the judgment was obtained" on a judgment of the County Court at Sandhurst and commenced in the Supreme Court of Victoria on the 14th day of July 1887 ;" and the same day was named as the date of the judgment and the date of the commencement of the action. Objections were taken first that the "form and nature of the action" were not sufficiently stated in accordance with the provisions of the section, and secondly that the memorial was inaccurate in giving the same day as the date of the commencement of the action and the date of the judgment. Both objections were upheld as fatal. Amount recovered.-The amounts must be in words, at length: Splatt v. Splatt, (1885) 2 W.N. 18 ; Bank of N.Z. v. Proudfoot, 6 N.S.W.R. 177; 2 W.Ñ. 14. 8. (1) Any Judge of the Supreme Court of New South Wales, upon the application of the person in whose favour such judgment was obtained, or of his attorney, may issue a summons calling upon the person against whom such judgment was obtained to show cause, within such time after personal or such other service of the summons as the Judge directs, why execution should not issue upon such judgment. (2) Such summons shall give notice that, in default of appearance, execution may issue accordingly. Person in whose favour, etc. * * or his attorney.-In Victorian PhillipStephan Co. v. Davis, (1890) 11 N.S.W.R. 257; 7 W.N. 9, the application was made by the Sydney attorney, describing himself as agent for the Victorian attorneys of the plaintiffs; the point was taken that he was not attorney for the plaintiffs, but no decision was given, the point being apparently abandoned. Why execution should not issue. The granting or withholding leave to issue execution is in the discretion of the Court or the Judge to whom the application is made, and in exercising the power given by this Act, the Court or Judge should be guided by the same principles as would guide an English Court in an action upon a foreign judgment, and the same considerations as would prevent an English Court from giving effect to a foreign judgment ought to prevent a Judge of this Court from granting an application to issue execution made under this Act: The Brisbane Oyster Fishery Co. v. Emerson, (1877) Knox 80; Bank of New Zealand v. Proudfoot, (1885) 6 N.S.W.R. 177. See as to the cases in which a foreign Court has jurisdiction: Sirdar Singh v. Rajah of Faridkote, (1894) A.C. 670. This principle is acted on through a long series of cases each turning on its own particular facts, the question generally being whether the defendant had done anything to bring himself within the jurisdiction of the Court in which the judgment had been obtained: see Warner v. Fischer, (1875) 13 S.C.R. 346; Johnson v. Poole, (1877) Knox 394; Sargood v. Charasse, (1881) T.T.R. 13 (2nd Term); Mainwaring v. Mercer, (1881) T.T.R. 44; The Glanmore and Monkland G.M. Co. v. Buckland, (1884) 1 W.N. 92; Berry v. Shead, (1886) 7 N.S.W.R. 39; 2 W.N. 54; Herman v. McQuade, (1886) 3 W.N. 64 ; James v. Jameson, (1887) 3 W.N. 114; Baird v. Bell, (1887) 4 W.N. 17; Splatt v. Splatt, (1889) 10 N.S.W.R. 227; Victorian Phillip-Stephan Co. v. Davis, (1890) 11 N.S.W.R. 257; 7 W.N. 9; Smith v. Campbell, (1890) 7 W.N. 10; Herman v. Meallin, 8 W.N. 38; L. C. Bank of Australia v. McEdward, (1894) 10 W.N. 195; Bank of New Zealand v. Lloyd, (1898) 14 W.N. 160. Married women.-In Marks v. Casey, (1890) 7 W.N. 35, leave was refused to issue execution against a married woman here, her husband not having been joined, though the judgment was regularly obtained in Victoria. And in Dean v. Rising Moon G.M. Co., (1893) 10 W.N.. 77, evidence having been given of the Victorian law as to the right of a married woman to sue in her own name, leave was granted to issue execution on a judgment obtained in Victoria by a married woman against a no-liability company registered in Victoria, but whose land was in New South Wales. Voluntary appearance in a suit in a foreign jurisdiction gives the foreign Court jurisdiction: Victorian Phillip-Stephan Co. v. Davis, (1890) 11 N.S.W.R. 257; 7 W.N. 9. Bankruptcy of defendant.-The bankruptcy of the defendant in the colony where the judgment was recovered has been held to be no bar to memorial issuing as it would not be a plea in bar to action on the judgment: Bank of New Zealand v. Proudfoot, supra. Bankruptcy of plaintiff.—But the bankruptcy of the plaintiff prevented leave to issue the execution being granted, the proper course being first to take out a summons to revive the judgment and then a second summons for leave to issue execution: Beere v. Czerwonka, (1881) 2 N.S.W.R. 355. Costs. When the application is dismissed costs are always granted: James v. Jameson, (1887) 3 W.N. 114; but aliter when it is allowed: Allen v. Birkby, (1887) 4 W.N. 16; Splatt v. Splatt, (1889) 10 N.S.W.R. 227; 6 W.N. 58; though it was suggested by Darley, C.J., that the costs might be recoverable as part of the costs of the execution: Victorian Phillip-Stephan Co. v. Davis, (1890 )11 N.S.W.R. 257 ; 7 W.N. 9, but not decided. S. 8. of execution. 9. If the person so summoned does not appear or does not Order for issue show sufficient cause against such summons, the Supreme Court, 19 Vic. No. 12, or a judge thereof, on due proof of such service as aforesaid, may s. 3. order execution to issue as upon a judgment of such Court, subject to such terms and conditions, if any, as to such Court or judge may seem fit. Appeal lies to the Court from such an order of a judge: Warner v. Fischer, (1875) 13 S.C.R. 346. Under special circumstances application may be made to the Judge to rescind his own order: Beere v. Czerwonka, (1881) 2 N.S.W.R. 355. 10. Thereupon, and subject thereto, the person entitled to Execution such execution shall have and be entitled to all such process and to thereon: S. 10. Revivor, &c. s. 3. all such rights and remedies for the enforcement thereof, and the person against whom such execution is ordered shall in like manner be entitled to all such protective rights and advantages as they would respectively have been entitled to had such judgment been obtained in the Supreme Court. In Re a Bankruptcy notice, (1898) 8 B.C. 26, A. H. Simpson, J., decided that a bankruptcy notice might issue on a memorial of judgment, leave having been obtained to issue execution: see Re Richards, (1902) 19 W.N. 152. 11. All such proceedings may be had or taken for the 19 Vic. No. 12, revival of such judgment or the enforcement thereof by and against persons not parties thereto as may be had or taken for the like purposes upon any judgment of the Supreme Court. Revival. See Beere v. Czerwonka, (1881) 2 N.S.W.R. 355. District Court summons may be served out jurisdiction. 52 Vic. No. 23, s: 3. Affidavit to be filed. PART III. DISTRICT COURT PROCEEDINGS AGAINST PERSONS OUT OF THE JURISDICTION. 12. Any summons issued under the authority of the of District Courts Act, 1901, for a debt or liquidated demand in money, whether on balance of account or otherwise, not exceeding in the whole the sum of two hundred pounds (if such summons bear an endorsement under the seal of the district court whence it issues to the effect that it is for service out of the jurisdiction), may be served out of the jurisdiction. 13. (1) Before any such summons is so endorsed and sealed, the plaintiff or some person on his behalf, shall file an affidavit, in Second Schedule the form in the Second Schedule hereto or to the like effect, Ibid. and prima facie case proved. Ibid. s. 3. stating, (a) that the defendant is resident out of the jurisdiction; (c) the nature of the same; (d) the amount sought to be recovered; (e) that the claim is for a debt or a liquidated demand in money not exceeding in the whole the sum of two hundred pounds, or that if it originally exceeded that sum it has been reduced, by payment or admitted set-off or by abandonment of excess, to a sum not exceeding two hundred pounds; (f) what is believed to be the defendant's then place of residence and the distance in miles (approximately) of such place of residence from the Court whence such summons is issued. (2) Proof shall also be given to the satisfaction of-(a) the judge of the district court whence such summons issues, or (b) a stipendiary or police magistrate acting for the district in which such district court is holden, or |