Notice of motion - examination order (Form 53)

After judgment, a creditor who knows little about the debtor's means usually starts with an examination notice (Forms 51 or 52), which asks the debtor to answer questions and produce documents. If the debtor ignores it or answers inadequately, the creditor can apply by Form 53 for an examination order, which requires the debtor (or an officer of a company debtor) to attend court and be questioned about debts owed to them, other property and their means of paying. Its heading cites Uniform Civil Procedure Rules 2005 (NSW) r 38.2. The NSW Online Registry says the creditor can apply where the debt is unpaid in whole or part and the debtor has not given sufficient answers or documents in response to an examination notice.

When you need it

• You hold a NSW judgment that has not been paid in full.
• You served an examination notice and the debtor did not return it, or did not answer all questions or produce the documents asked for. Legal Aid NSW says you can apply if the notice is not complied with within 28 days.
• The judgment is not stayed by a court order or by an instalment order that is still in effect.

1. 1

   Heading, judgment date and parties

   Copy the court details from the proceedings and give the date of the judgment being enforced. Name yourself as judgment creditor and the person to be examined: the debtor if an individual, or the officer to be examined if the debtor is a company.

2. 2

   Orders sought

   Order 1 requires the named person to attend court to be examined about debts owed to them and their other property or means. Order 2 lists the documents they must bring; attach a schedule if needed.

3. 3

   Affidavit: amount outstanding

   State payments received, the amount outstanding on the judgment (including earlier enforcement costs but excluding post-judgment interest), the interest under s 101 of the Civil Procedure Act 2005, and the costs of this order.

4. 4

   Affidavit: the examination notice

   Give the date the examination notice was served and say whether it was not returned or the answers or documents were insufficient, annexing what was returned. In the Supreme Court, the form asks you to set out reasons why leave to issue the order should be granted.

5. 5

   Affidavit: venue and stay

   Say whether the debtor lives or works within 30 kilometres of the registry where judgment was entered (if not, propose a location), add anything relevant to venue, and confirm the judgment is not stayed or that an instalment order has ceased to have effect and why.

6. 6

   Swear or affirm

   Sign before an authorised witness; deponent and witness sign every page (UCPR r 35.7B).

• File at the court where judgment was entered, or online through the NSW Online Registry. Legal Aid NSW says that when filing online you do not need to prepare the examination order (Form 54), as the court generates it; at a registry you file both forms with copies.
• A filing fee applies. Check the court's current fee schedule.
• Once the order is made, serve the sealed examination order (Form 54) on the debtor at least 14 days before the examination hearing, and file an affidavit of service (Form 41) before the hearing at the court where it will be held (NSW Online Registry).
• Legal Aid NSW says the order must usually be served personally on an individual debtor.

• Check paragraph 9 of the affidavit: the form asks you to confirm the debtor has not responded adequately to a previous examination notice within the last 3 months (UCPR r 38.2(1)(c)). That requirement, and the one about an unanswered examination notice, do not apply to a Supreme Court judgment (r 38.2(2)).
• Recalculate post-judgment interest up to the date you sign the affidavit.
• If the debtor does not attend, the Online Registry lists a separate notice of motion for an arrest warrant for examination (Form 57), with its own time limits.
• Add a statement that generative AI was not used to prepare the affidavit (Practice Note SC Gen 23); this version of the form does not include one.