You need a judgment from the court before you can apply for an examination order.
If the other party does not comply with the examination notice within the period of time given in the notice (at least 28 days) you can ask the court to issue an examination order. This is an order that the other party must come to court to answer questions and show documents about their financial position. This is called 'examination'.
The other party has failed to comply with the examination notice if:
If you want to apply for an examination order, follow the steps in the guide on this page.
You will need two forms:
Form 54 – Examination order
You can get blank copies of the forms from:
An application for an examination order must include an affidavit, which is in the notice of motion form.
You can also complete and file this form online using the
NSW Online Registry.
You can fill out your form:
To fill in the forms you will need to have the following information ready:
It will help to have your copy of the examination notice with you while you fill out the forms.
A copy of the examination notice you posted to the other party must be attached (annexed) to the notice of motion.
The other party must come to the court named in the examination order. This will be the court where judgment was entered. If the other party lives or works more than 30 kilometres from the court where the judgment was entered the examination hearing will be at the court nearest to them.
Both forms must be filed with the court. You should file the original signed documents and three copies. One of the copies will be for you, one copy for the other party and one copy to be annexed to the Affidavit of service.
The filing fee is $86.00 for an individual and $172.00 for a corporation (as at 1 July 2017).
The court officer will complete the section titled 'When and Where to attend court' on the examination order. This will tell the other party the time, date and place to attend for examination.
You can also complete and file these forms online using the NSW Online Registry.
The examination order must be served on the other party personally, by handing it to them or leaving it in their presence with an explanation of what the order is. If the defendant is a sole trader you can also serve the document by posting it to the defendant's place of business (like a shop). If the defendant is a corporation you can serve the document by posting it to the company's registered office. You can pay for a professional process server to serve the examination order or arrange it yourself. If you are using a professional process server, the amount you can claim is usually limited to the fee the Sheriff would charge for that service. The current fee is $66.00 (as at 1 July 2017).
An order for examination must be served on the other party at least 14 days before the day on which he or she is required to attend for examination.
If a professional process server serves the examination order, they will also prepare an affidavit of service.
If you served the examination order yourself or arranged for a friend or relative to do it, the person who served the examination order needs to fill out and sign an affidavit of service.
You should then file the affidavit of service with the court. If you do not file the affidavit of service before the court date, make sure you take the original affidavit of service and a copy with you to the examination.
Instructions: Instructions for filling out an affidavit of service.Sample: Sample affidavit of service.
On the date given, you must go to court for the examination.
The examination process is an informal process between you and the other party – it's not a formal hearing, and the court registrar or magistrate is not usually involved. You should ask the other party questions about their income, assets and other debts, and to provide documents about their financial circumstances.
For example, you could ask the other party things like:
This information can help you decide the best way to enforce the judgment. If they do not answer questions, you should tell the registrar. They will advise the other party that the questions have to be answered. If the debtor still refuses, the registrar can refer the matter to a magistrate.
If the examination is at a court a long way from where you live, you can ask the registrar at that court to conduct the examination on your behalf.