Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered Regulationssubstitute
Order 26 Payment into and out of court and tender
1 Payment into court—amount
(1) In an action for a debt or damages (other than an action under the Civil Law (Wrongs) Act 2002 , part 3.1 (Wrongful act or omission causing death)), a defendant may at any time after appearance—
(a) pay an amount into court in satisfaction of—
(i) the claim; or
(ii) if there are 2 or more causes of action joined in a single action—1 or more of the claims; or
(b) in an action for defamation—pay an amount into court by way of compensation, satisfaction and amends.
(2) If an action is brought under the Civil Law (Wrongs) Act 2002 , part 3.1, a defendant may at any time after appearance pay an amount into court as compensation for the benefit of the people for whose benefit the action is brought, and who are entitled to compensation under the part, without stating the shares into which the amount is to be divided by the court.
(3) The defendant must serve on the plaintiff a notice of payment into court under this rule in accordance with form 1.18 and, if there are 2 or more defendants, on each of the other defendants.
(4) If there are 2 or more causes of action joined in a single action, and an amount is paid into court in satisfaction of 1 or more of the claims, the notice must state, unless the court otherwise orders—
(a) the claim or each claim for which payment is made; and
(b) the part of the amount paid in satisfaction of each claim.
(5) The notice must state whether liability is admitted or denied.
(6) If a defence of tender before action is pleaded, the amount claimed to have been tendered must be paid into court.
(7) A defendant who has paid an amount into court in accordance with this rule may make further payments increasing the amount without the court's leave.
2 Payment into court—bond
(1) Except under the defence of tender before action, a defendant may file a bond for payment of an amount to the registrar if the plaintiff accepts the amount in satisfaction of the claim under rule 6 (Plaintiff may accept payment etc) in accordance with form 1.19 given by—
(a) an authorised insurer, or the nominal defendant, under the Road Transport (General) Act 1999 ; or
(b) an approved insurer, or the nominal insurer, under the Workers Compensation Act 1951 ; or
(c) a corporation approved by the registrar; or
(d) the Territory, the Commonwealth, a State or another Territory.
(2) The bond must be given by—
(a) a person mentioned in subrule (1) (an approved person ); or
(b) a person who is authorised, in writing, to give the bond for the approved person (an authorised person ).
(3) The bond remains in effect unless the court otherwise orders.
Note The parties to the action may consent to the discharge of the bond under o 42 r 11 (Consent order or judgment signed by registrar).
(4) The authority may be in accordance with form 1.20.
(5) If the bond is given by an authorised person, a copy of his or her authority must be filed with the bond unless the authority has already been filed.
(6) An authority given by or for an approved person that has been filed binds the approved person until notice of its revocation is filed.
(7) If a bond is filed by a defendant in accordance with this rule, this order (including rule 1 (4) to (6)) applies as if the defendant had paid the amount of the bond into court under rule 1.
3 Payment into court—security
(1) Instead of paying an amount into court under rule 1 (Payment into court—amount) or filing a bond under rule 2 (Payment into court—bond), a defendant may file a security securing payment of an amount to the registrar if the plaintiff accepts the amount in satisfaction of the claim under rule 6 (Plaintiff may accept payment etc).
(2) The security may be accepted by the registrar.
(3) If the registrar accepts the security, this order (including rule 1 (4) to (6)) applies as if the defendant had paid the amount of the security into court under rule 1.
4 Interest up to date of payment into court
For this order, the plaintiff's claim or cause of action for a debt or damages is taken to include a claim or cause of action for interest that might be included in the judgment under the Act, section 69 or otherwise, if judgment were given at the date of the payment into court.
5 Payment in by defendant who has counterclaimed
(1) This rule applies if—
(a) a defendant makes by counterclaim a claim (the defendant's claim ), or 2 or more claims (the defendant's claims ), against the plaintiff for a debt or damages; and
(b) the defendant pays an amount into court under rule 1 (Payment into court—amount); and
(c) in making the payment the defendant has taken into account and intends to dispose of—
(i) the defendant's claim; or
(ii) if there are 2 or more claims made by the counterclaim—1 or more of the defendant's claims.
(2) The notice of payment into court must state the relevant matters mentioned in subrule (1) (c).
6 Plaintiff may accept payment etc
(1) If an amount is paid into court under this order by a defendant, the plaintiff may accept the amount—
(a) in satisfaction of—
(i) the claim; or
(ii) if there are 2 or more causes of action joined in a single action—the claim or each claim for which the payment is made; or
(b) if the action is an action for defamation—as compensation, satisfaction and amends.
(2) The plaintiff may accept the amount by serving a notice of acceptance in accordance with form 1.21 on the defendant (or, if the payment was made by 1 of several defendants, each defendant)—
(a) within 14 days after the day notice of payment into court is served on the plaintiff; or
(b) if 2 or more payments into court have been made—within 14 days after the day notice of the last payment into court is served on the plaintiff.
(3) If the defendant paid the amount into court by bond or other security, the defendant must pay into court the amount of the bond or security within 14 days after the day the notice of acceptance is served on the defendant.
(4) If the defendant does not comply with subrule (3), the defendant is not entitled to any advantage under the rules for the payment into court, and the plaintiff may—
(a) withdraw the plaintiff's acceptance by written notice; or
(b) if the payment was made under rule 1 (2) (which is about payment into court in an action under the Civil Law (Wrongs) Act 2002 , part 3.1)—apply to the court by motion on notice for the registrar to assign the bond or security to the plaintiff so the plaintiff can enforce it; or
(c) if the payment was not made under rule 1 (2)—require the registrar to assign the bond or security to the plaintiff so the plaintiff can enforce it.
(5) If the amount was paid into court under rule 1 (2), the amount may be paid out of court only under a court order.
(6) If the amount was paid into court by 1 of several defendants, the amount may be paid out of court only under a court order dealing with all of the costs of the action or cause of action.
(7) Unless the court otherwise orders, payment must be made—
(a) to the plaintiff; or
(b) if the plaintiff has given written authority for payment to be made to the plaintiff's solicitor—to the plaintiff's solicitor.
(8) If payment out of court is made in accordance with this rule, the claim or stated claim is stayed.
(9) If the action is an action for defamation, and the plaintiff accepts the amount paid into court, the plaintiff may by motion on notice apply to the court for leave to make in open court a statement in terms approved by the court.
(10) This rule does not apply to an action or cause of action to which a defence of tender before action is pleaded.
7 Plaintiff accepts payment—costs
(1) This rule applies—
(a) if there is only 1 cause of action—if the plaintiff accepts in accordance with rule 6 an amount paid into court in satisfaction of the claim; or
(b) if there are 2 or more causes of action joined in a single action—if the plaintiff accepts an amount paid into court in satisfaction of all the claims or stated claims and states in the notice of acceptance that the other claims are abandoned.
(2) Unless the court otherwise orders, the plaintiff may file a bill of costs for taxation after 4 days after the day the amount is paid out of court.
(3) The bill of costs consists of the costs incurred to the day of payment into court and the costs reasonably incurred in accepting the payment.
(4) The plaintiff may sign judgment for the amount of taxed costs 48 hours after taxation of the costs.
8 Plaintiff accepts payment—counterclaim
(1) This rule applies if an amount is paid into court by a defendant who—
(a) made a counterclaim; and
(b) stated in the notice of payment into court that in making the payment the defendant had taken into account and intended to dispose of all the claims, or stated claims, for which the defendant counterclaimed.
(2) If the plaintiff accepts the amount, the claims, or stated claims, are stayed against the plaintiff.
9 Payment out of amount remaining in court
(1) If an amount paid into court is not taken out in accordance with rule 6 (Plaintiff may accept payment etc), the amount may be paid out only—
(a) with the consent of all parties to the action; or
(b) under a court order.
(2) The order may be made at any time before, during or after the trial of the action.
10 Payment into court by defendant to counterclaim
The plaintiff or other person made defendant to a counterclaim may pay an amount into court in accordance with this order, and this order (other than rule 7 (4)) applies with the necessary changes.
11 Nondisclosure of payment into court etc
(1) This rule does not apply in an action—
(a) to which a defence of tender before action is pleaded; or
(b) in which a plea under the Civil Law (Wrongs) Act 2002 , section 133 (Defence of apology and payment into court—defamation) has been filed.
(2) Until all questions of liability or the amount of debt or damages have been decided in the action, the pleadings must not include a statement that an amount has been paid into court under this order, and the judge at the trial of the action must not be told about any payment into court.
(3) When exercising a discretion about costs of the action (other than an interlocutory application for which a separate costs order is to be made), the judge must take into account—
(a) the fact that an amount has been paid into court; and
(b) the amount of the payment.
(4) Subrule (3) does not limit the matters that the judge may take into account.
12 Payment in under order
(1) An amount paid into court under a court order may be paid out of court only under a court order.
Note A court order includes a consent order (see o 42 r 11).
(2) If an amount is paid into court by the defendant under an order under order 15 (Summary judgment on statement of claim), the defendant may (unless the court otherwise orders), by the defendant's pleading or written notice, appropriate all or part of the amount, and any additional payment if necessary, to all or a stated part of the plaintiff's claim.
(3) The amount appropriated is taken to be an amount paid into court under this order.
13 Approval of settlement of action by person with a legal disability
(1) In an action in which there is a claim for an amount (including an amount of damages) by or on behalf of a person with a legal disability, a settlement or compromise may only be entered into, and an amount paid into court may only be accepted, with the court's approval.
(2) This rule applies whether the person is suing alone or with another party.
14 Amount recovered by person with legal disability to be paid into court
An amount (including an amount of damages) recovered, awarded or agreed to be paid in an action in relation to the claim of a person with a legal disability must be paid into court.
15 Court orders about recovered etc amounts
(1) The court may make an order directing how an amount recovered, awarded or agreed to be paid in an action in relation to the claim of a person with a legal disability (the claimant ) must be dealt with.
(2) Without limiting subrule (1), the court may, by order, direct—
(a) the payment of all or part of the amount to—
(i) the claimant or his or her litigation guardian for—
(A) expenses incurred by or paid for the claimant; or
(B) the maintenance or benefit of the claimant; or
(ii) the claimant's solicitor for costs; or
(b) the investment of all or part of the amount for the claimant in the way stated in the order; or
(c) the investment of all or part of the interest received from an investment under this rule for the claimant in the way stated in the order; or
(d) the changing of an investment made for the claimant under this rule; or
(e) the sale of securities in which an amount is invested for the claimant under this rule at the time, and on the conditions, stated in the order; or
(f) the payment of all or part of the amount, or the transfer of a security or investment under this rule (including an account with an authorised deposit-taking institution), for the claimant.
(3) In this rule:
"amount" includes an amount of damages.