New South Wales Consolidated Regulations

UNIFORM CIVIL PROCEDURE RULES 2005 - REG 39.1

39.1 Circumstances in which issue of writ requires leave

(cf SCR Part 44, rule 2)

(1) A writ of execution may not be issued in the following circumstances except by leave of the court--

(a) if there has been any change in the persons entitled or liable to execution under the judgment, whether by assignment, death or otherwise,

(b) if the judgment is against the assets of a deceased person coming to the hands of an executor or administrator after the judgment took effect, and the writ is against those assets or any of them,

(c) if a person's entitlement under the judgment is subject to fulfilment of a condition,

(d) if the writ is a writ for the possession of land,

(e) if the writ is against property in the hands of a receiver appointed by the court,

(f) if the writ is against property in the hands of a sequestrator,

(g) if the writ is in aid of another writ of execution.

Note--: See also section 134 of the Civil Procedure Act 2005 with respect to stale judgments.

(2) If leave is required, it may be applied for in the notice of motion for the issue of the writ of execution.

(3) The motion for leave must be supported by the following evidence--

(a) evidence that the applicant is entitled to proceed to execution on the judgment,

(b) evidence that the person against whom execution is sought to be issued is liable to execution on the judgment,

(c) if the judgment is for the payment of money, evidence as to the amount due on the date of the motion,

(d) if subrule (1)(a) applies, evidence as to the change which has taken place,

(e) if subrule (1)(b) or (c) applies, evidence that a demand to satisfy the judgment has been made on the person liable to satisfy it and that the person has not satisfied it.

(4) Subrule (1) does not limit the operation of any other Act or law that requires leave for the issue of a writ of execution.