NSW Appeals Process

Appeals Process

• An appeal is a formal process where an unsuccessful party seeks to have a judgment or order of the court set aside.

NSW Court of Appeal

• The NSW Court of Appeal is the key appellate court in NSW.
• The Supreme Court Act 1970 (NSW) is the key legislation governing the appeals process.
• The NSW Court of Appeal is bound by decisions of the High Court, and in turn, its decisions bind other NSW courts.

Types of Appeals

• There are two main types of appeals:
  • Appeals as of right (s 101(1) of the Supreme Court Act 1970 (NSW))
    • Examples: appeals from decisions of a Division of the Supreme Court
  • Appeals only with leave (s 101(2) of the Supreme Court Act 1970 (NSW))
    • Examples:
      • Interlocutory judgments and orders
      • Judgments or orders on applications for summary
      • Judgments that a company be wound up
      • Judgments restraining or refusing to restrain winding up proceedings regarding companies
      • Judgments or orders in proceedings of the Court regarding taxation or assessment of costs
      • Final judgments involving less than $100,000

Nature of an Appeal

• s 75A of the Supreme Court Act 1970 (NSW) outlines the nature of an appeal
• s 75A(5): an appeal is by way of a rehearing
• s 75A(6): the appellate court has all the powers and duties of the original court
• s 75A(7): the court may receive further evidence
• s 75A(8): the court won't receive further evidence except on special grounds (except for trials or hearings on the merits)

Enforcement of Judgments

• Enforcement is the process of compelling compliance with a court's determination or order.
• A judgment creditor pursues enforcement against a judgment debtor.
• A judgment debtor owes money pursuant to a court order, while a judgment creditor is owed money pursuant to a court order.

Means of Enforcement under the UCPR

• Part 39 of the UCPR deals with enforcement.
• Division 1: enforcement of writs of execution generally.
• Division 2: enforcement of writs against land.
• Division 3: enforcement of writs against goods, etc.
• Division 4: garnishee orders.
• Division 5: charging orders.
• Division 6: general.

Importance of Timely Payment

• Judgment debtors may be tempted to delay payment, allowing inflation to reduce the value of the debt.
• Section 101 of the Civil Procedure Act 2005 (NSW): judgment debts incur interest until paid.
• Interest is payable at the prescribed rate.
• No interest is payable if the full amount is paid within 28 days of the judgment.

Writs of Execution

• A writ of execution is a court order authorizing the Sheriff to seize and sell the judgment debtor's assets.
• Modern writs are descendants of the ancient writ of fieri facia (or fi fa).
• Section 102 of the CPA defines a writ of execution as:
  • A writ of delivery (section 105).
  • A writ for the levy of property (section 106(1)(a)).
  • A writ of possession (section 104).

Applying for a Writ of Execution

• Section 103 of the CPA: application is governed by the UCPR.
• UCPR rules 39.1, 39.2, and 39.3: application made by notice of motion and supporting affidavit.

Classes of Judgments

• There are four broad classes of judgments:
  • Those entitling the successful party to possession of land (section 104 CPA).
  • Those requiring the delivery of goods (section 105 CPA).
  • Those requiring the payment of money (section 106 CPA).
  • Those involving mandatory or injunctive orders.

Enforceability of Judgments

• Section 133 CPA: a judgment or order cannot be enforced until it has been entered in accordance with the uniform rules.
• Rule 36.11(2): a judgment or order is taken to be entered when it is recorded in the court's computerized court record system.
• Section 17 of the Limitation Act 1969 (NSW): a judgment is enforceable for 12 years from when it is entered in the Court records.

Orders for Examination

• Orders for examination may be necessary to ascertain the judgment debtor's financial circumstances.
• Section 108 CPA: the court can order the judgment debtor to attend court to be orally examined and/or to produce documents as to their financial circumstances.
• Relevant UCPR rules: rules 38.1 and 38.2.

Judgment for Payment of Money

• Section 106(1) CPA: a judgment for the payment of money can be enforced through three main instruments:
  • A writ for the levy of property.
  • A garnishee order.
  • A charging order (in the case of a judgment of the Supreme Court or the District Court).

Writ for the Levy of Property

• Section 106(2) CPA: a writ for the levy of property is sufficient authority for the Sheriff to seize or sell goods, money, and other assets of the judgment debtor.
• Section 106(3) CPA: limits on what can be taken by the Sheriff.
• Rule 39.6(2): regulates the priority in which goods are sold at auction.