Order 8 Division 6 of the National Court Rules 1983 gives a defendant a way of putting real pressure on a plaintiff: money on the table, and a costs risk if it is refused.
Rules 68 and 69
Rule 68 — in this Division, “cause of action” means a cause of action for the recovery of debt or damages, and “trial” includes the hearing of a motion for judgement.
Rule 69(1) — a defendant may from time to time bring money into Court (a) in answer to any one or more causes of action on which a plaintiff claims; and (b) in addition to money previously brought in.
Rule 69(2) — a defendant may do so by paying the money into Court or by filing a security in accordance with Rule 81.
The Division has no application to a claim for an injunction, a declaration, or possession of land. A defendant may pay in more than once, topping up as the case develops — but under Rule 70, a defendant to a cross-claim may not bring money in in answer to a cause of action in respect of which he may, before trial, make an offer of contribution under Rule 49.
Rules 71 to 73
Rule 71(1) — on bringing money in, the defendant shall file a notice of deposit in Form 24.
Rule 71(2) — where the plaintiff claims on two or more causes of action, the notice must specify the cause or causes of action in answer to which the money is brought in, and, if part is allotted to particular causes of action, the amount of that part and the causes to which it is allotted.
Rule 72(1) — before trial, the Court may order the defendant to allot the money distributively amongst the causes of action and file an amended notice.
Rule 73 — where the defendant takes into account a cross-claim with a view to its abandonment if the plaintiff accepts, the notice shall specify the cause of action on the cross-claim taken into account.
Rule 75 — the plaintiff’s decision
(2) Where the notice of payment is filed before the beginning of the trial, the plaintiff may accept within 14 days after service of the notice, but before the beginning of the trial, by filing a notice of acceptance in Form 26.
(3) Where it is filed after the trial begins, or the defendant serves a notice confirming an earlier payment, the plaintiff may accept within two days, by announcement to the Court during the trial or by filing Form 26.
(4) But a plaintiff shall not accept after the Court gives its decision or begins to give its reasons for decision.
The window narrows sharply. Once the judge begins delivering reasons, the offer is gone.
Rule 75(7) lets a plaintiff who accepts on some but not all causes of action abandon the others; Rule 75(8) lets one who accepts from a single jointly liable defendant abandon the claim against the others. Both are decisions not lightly made.
(1) The proceedings shall be stayed as to that cause of action against that defendant, any alternative cause of action, anything abandoned under Rule 75(7) or (8), and any cross-claim taken into account under Rule 73.
(2) The liability of anyone jointly liable with that defendant shall be satisfied in the amount accepted, but not discharged except to the extent of that satisfaction.
Rule 80 — the judge must not know
The fact that money has been brought into Court —
(a) shall not be pleaded; and
(b) shall not be disclosed to the Court at the trial or hearing of any question of liability or amount of debt or damages until all such questions have been decided.
The costs pressure
Once liability and quantum are decided, the payment is disclosed. If the plaintiff has recovered no more than the amount paid in, they have gained nothing by continuing — and the Court’s discretion as to costs under Order 22 will ordinarily reflect that from the date the offer could have been accepted.
That is why Rule 78(2) requires that, on a motion for payment out, the Court shall, so far as practicable, deal with all the costs of the proceedings.
Rules 74, 77 to 79 and 81
| Rule | Effect |
|---|---|
| 74 | A defendant may, with leave, withdraw money or a security by filing Form 25 — but not after the money has been accepted by the plaintiff |
| 77 | A plaintiff may withdraw an acceptance by Form 28 where money secured is not paid in within seven days of notice of the acceptance, or with leave; the Court may then direct how to restore the parties to their earlier positions |
| 78 | Money is not paid out except by order in seven situations — including where a co-defendant does not join or consent; where a tender defence is raised; where the claim involves Parts IV and V of the Wrongs Act; where acceptance is after the trial began; and where the plaintiff is a disabled person |
| 79 | If the money is not accepted, the defendant is entitled to receive it back |
| 81 | A security is filed in Form 29 by an authorised person — a person approved by the Court — who is bound to observe the Division and gives an address for service |
Rule 78(1)(g) and Order 5 Rule 32 work together: a next friend shall not, except by leave, bring money into Court or accept money brought in, and money recovered for a disabled person shall be paid into Court unless otherwise ordered. The Court then directs how it is to be held, invested or applied.
Sources
- National Court Rules 1983 — O 5 r 32; O 8 rr 25, 49, 68–81; O 22; Forms 24–29
- Wrongs (Miscellaneous Provisions) Act (Chapter 297) — Pts IV, V
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.