Notice of discontinuance (Form 33)

A plaintiff may discontinue proceedings by filing a notice of discontinuance, either for all claims or for all claims against a particular defendant, with the consent of every other active party or with the leave of the court (UCPR r 12.1(1)). Form 33 (version 2) is the approved notice. It must carry a certificate that the plaintiff does not represent any other person, and unless filed with leave it must be accompanied by a notice of consent from each party whose consent is needed, with any terms of consent set out in that notice (r 12.1(2) and (3)). If any party was never served with the originating process the plaintiff must file an affidavit saying so (r 12.1(4)). A cross-claim is treated as separate proceedings for this purpose (r 12.1(5)).

When you need it

• The matter has settled and the parties agree the plaintiff will discontinue.
• The plaintiff wants to drop the claim against one of several defendants.
• A cross-claimant wants to discontinue a cross-claim (a cross-claim is discontinued separately from the main claim).
• There is no consent from every active party, and the court has granted leave to discontinue.

1. 1

   Court details, title and filing details

   Copy the case details and parties, and name the party discontinuing and what it relates to (for example the plaintiff's claim or a numbered cross-claim).

2. 2

   Notice details paragraph 1

   Choose whether the whole proceedings are discontinued or only so far as they concern named parties.

3. 3

   Paragraphs 2 and 3

   Paragraph 2 is the r 12.1(2)(a) certificate that the party does not represent anyone else. In paragraph 3 choose either that each active party consents, or that the notice is filed with leave granted on a stated date.

4. 4

   Signature

   Signed by the legal representative, or the party if not represented, with capacity and date.

5. 5

   Terms of discontinuance and notice of consent

   If consent is given on terms (commonly about costs), set them out under Terms of discontinuance. Each consenting party, or their lawyer, signs a notice of consent; repeat the block for each party.

• File the notice with the registry of the court where the proceedings are. The NSW Online Registry lists Notice of Discontinuance (UCPR 33) under forms for finalising a case, and notes you need the consent of served defendants, or an affidavit that a defendant was not served.
• Include the signed consents, or the leave order, at the time of filing.
• A filing fee may apply. Check the current fee schedule of the court where the proceedings are (Supreme, District or Local Court).

• Costs: unless the court orders otherwise or the notice provides otherwise, a discontinuing plaintiff must pay the defendant's costs incurred up to the date of filing (r 42.19(2)). If a different costs outcome was agreed, put it in the terms of consent.
• A discontinuance does not of itself stop you suing again for the same relief, unless the terms of consent or leave say so (r 12.3). If the court later finds you owe costs from the discontinued case, it can stay fresh proceedings until they are paid (r 12.4).
• Our record lists this form as PDF only, but the UCPR forms site also publishes a Word version.