Date:

04/18/2005

[1] Supreme Court Rules 1970 [Amendment 402]

Part 76 [Protective business]

Explanatory note

1.The object of these Rules is to make amendments to Part 76 of the Supreme Court Rules 1970 which relate to protective business. The amendments are consequential on the enactment of the Protected Estates Amendment (Missing Persons) Act 2004 and apply existing provisions of the rules to missing persons.

New South Wales

Supreme Court Rules (Amendment No 402) 2005
under the

Supreme Court Act 1970


The Supreme Court Rule Committee made the following rules of court under the
Supreme Court Act 1970 on 18 April 2005.


Steven Jupp
Secretary of the Rule Committee

Explanatory note
The object of these Rules is to make amendments to Part 76 of the Supreme Court Rules 1970
which relate to protective business. The amendments are consequential on the enactment of
the Protected Estates Amendment (Missing Persons) Act 2004 and apply existing provisions
of the rules to missing persons.


Supreme Court Rules (Amendment No 402) 2005
under the

Supreme Court Act 1970

1 Name of Rules
These Rules are the Supreme Court Rules (Amendment No 402) 2005.

2 Amendment of Supreme Court Rules 1970
The Supreme Court Rules 1970 are amended as set out in Schedule 1.


Schedule 1 Amendments


(Rule 2)
[1] Part 76 Protective Business
Omit "section 13" from the definition of subject person in rule 1.
Insert instead "section 13, 21C or 68".

[2] Part 76, Division 2, heading
Omit the heading to the Division. Insert instead:

Division 2 Applications under section 13, 21C or 68

[3] Part 76, rule 8
Omit "section 13 and section 68". Insert instead “section 13, 21C or 68”.

[4] Part 76, rule 9
Omit the rule. Insert instead:

9 Parties
(1) Where an application is made under section 13 or 68 of the
subject Act, the subject person shall be made a defendant.
(2) Where an application is made under section 21C of the subject
Act, the subject person shall be made a defendant but need not be
served.

[5] Part 76, rule 11
Insert at the end of the rule:
(2) Subrule (1) (a) and (b) do not apply in respect of an application
made under section 21C of the subject Act.

[6] Part 76, rule 13A
Insert after rule 13:

13A "Usual orders", s 21C
Where, under section 21C of the subject Act the court makes a
declaration that the defendant is a missing person and, with or
without further order or orders, makes the usual orders, that
expression means orders:
(a) that the estate of the defendant be subject to management
under the subject Act, and

(b) that, subject to the giving of security to the satisfaction of
the Commissioner, the person proposed in the summons be
appointed to be manager of the estate of the defendant to
act in relation thereto under the order and direction of the
Court or, where the Protective Commissioner is proposed,
that the management of the estate be committed to the
Protective Commissioner, and

(c) (where two or more are appointed) that on the death or
discharge of either (one or more) of the managers that
custody of the estate of the defendant shall continue to the
surviving or continuing manager (or managers), and

(d) that the assessed costs of the plaintiff (and, where the
defendant appears, of the defendant) of and incident to
these proceedings be paid to the parties entitled thereto out
of the estate of the defendant, and

(e) all parties be at liberty to apply as they may be advised.

[7] Part 76, rule 17

Omit "section 13" from rule 17 (1) wherever occurring.
Insert instead "section 13 or 21C".

[8] Part 76, Division 3A
Insert after rule 23:

Division 3A Applications under section 35A

23A Mode of application
This Division applies to applications made under section 35A of
the subject Act (which relates to orders when a person is no
longer missing).

23B Notice of Motion
(1) The application is to be made by motion in the proceedings in
which the declaration and order under section 21C of the subject
Act were made.

(2) Notice of the motion is to be served on the manager or on the
person on whose application the declaration and order were
made.

23C Business in the absence of the public
Where, at the time fixed for the hearing of the motion, there is no
attendance by any person opposing the claim, the Court may
determine or deal with the application in the absence of the public
and without any attendance by or on behalf of any person.

23D Form of order
An order under section 35A may be made in or to the effect of
Form 86A.

[9] Part 76, rule 30
Omit "section 13". Insert instead "section 13 or 21C". [10] Part 76, rule 34
Omit "section 13" from rule 34 (1). Insert instead "section 13 or 21C".

[11] Schedule F Forms
Insert after Form 83:

Form 83A
(Order under section 21C)
P 76, r 13A.
ORDER
THE COURT DECLARES that the defendant is a missing person.
THE COURT ORDERS that—
1. the estate of the defendant be subject to management under the subject
Act.
2. (name of manager(s)) be appointed without security (or, subject to the
giving of security to the satisfaction of the Commissioner (name of
manager(s)) be appointed) manager(s) of the estate of the defendant to
act in relation thereto under the order and direction of the Court;
3. (where two or more persons are appointed, on the death or discharge of
either (or any one or more) of the said manager(s) the management of
the estate shall continue to the surviving or continuing manager(s));
4. the assessed costs of the plaintiff (and, where the defendant appears, of
the defendant) of and incident to these proceedings be paid to the parties
entitled thereto out of the estate of the defendant;
5. all parties are at liberty to apply as they may be advised.
(Complete as in general form of minute of order under Part 41, rule 11
Form 51.)


[12] Schedule F, Form 86A
Insert after Form 86:

Form 86A
(Order pursuant to section 35A)
P 76, r 23D.
ORDER
THE COURT DECLARES that it has been proved to its satisfaction that (name
of protected person) is alive.
THE COURT ORDERS that-
1. (name of manager) is discharged from the office of manager of the
estate of (name of protected person);
2. the said (name of manager) shall within (state period of time) file and
pass his account in the registry in accordance with the rules;
3. the said (name of manager) shall, within days after the taking of
the said account, hand over and transfer the residue, if any, of the said
estate to the said (name of protected person);
4. The assessed costs of all parties be paid to the persons entitled thereto
out of the estate of the said (name of protected person).
(Complete as in general form of order under Part 41, rule 11 Form 51.)
[13] Schedule F, Index of Forms
Insert after the matter relating to Form 83 in the Index of Forms at the end of
the Schedule:

[14] Schedule F, Index of Forms
Insert after the matter relating to Form 86 in the Index of Forms at the end of
the Schedule:
83A. Order under s 21C of the Protected Estates Act 1983 (P 76, r 13A).
86A. Order under s 35A of the Protected Estates Act 1983 (P 76, r 23D).