Notice of motion - default judgment for detention of goods (Form 37)

Default judgment is available in proceedings commenced by statement of claim (UCPR r 16.1). A defendant is in default if no defence is filed within 28 days after service of the statement of claim or other time allowed (rr 14.3 and 16.2). Where the claim relates only to detention of goods, judgment may be given, at the plaintiff's option, for delivery of the goods and costs, or for payment of the value of the goods (assessed by or as directed by the court) and costs (r 16.5(1)). Form 37 (version 3) combines the notice of motion with the affidavit in support. That affidavit must state which goods have and have not been returned, any payments for the goods, the source of the deponent's knowledge, the costs claimed and when and how the statement of claim was served (r 16.5(2)).

When you need it

• Your statement of claim seeks return of goods (detinue) and the defendant has not filed a defence in time.
• You want judgment for delivery of the goods or, alternatively, for their value to be assessed.
• For a claim for a fixed sum of money use Form 38; for mixed claims check r 16.8.

1. 1

   Court details, filing details and person affected

   Copy the case details, name the plaintiff as the person seeking orders, and list each defendant against whom default judgment is sought.

2. 2

   Orders sought

   Choose order 1 (delivery of the goods described in the statement of claim, with any exception for goods already returned) or order 2 (payment of the value of the goods as assessed). Order 3 seeks costs. The hearing details state the motion is dealt with in the absence of the parties.

3. 3

   Affidavit paragraphs 1 to 3

   The deponent says who they are and their capacity, the source of their knowledge about delivery of the goods, and when and how the statement of claim was served on each defendant (referring to the affidavit of service).

4. 4

   Affidavit paragraphs 4 to 6

   State whether any goods have been returned and list them, whether any payments have been made for the goods, and the costs claimed (filing fees, service fees and solicitor's fees). Professional costs cannot exceed the amount fixed under s 59 of the Legal Profession Uniform Law Application Act 2014 (r 16.5(2)(d)).

5. 5

   Swearing and witness certificate

   The deponent swears or affirms before a justice of the peace, solicitor, barrister, commissioner for affidavits or notary public, who completes the certificate about seeing the deponent's face and confirming identity. Both sign each page (r 35.7B).

• File the motion in the registry of the court where the statement of claim was filed. Unless the court orders otherwise it may be dealt with in the absence of the parties and need not be served on the defendant (r 16.3(1A)).
• File an affidavit of service of the statement of claim (Form 41) with it, unless the Local Court served the statement of claim itself (r 16.3(2) and (3)).
• The affidavit in support is valid only if sworn within 14 days before the motion is filed, unless the court orders otherwise (r 16.3(4)).
• A filing fee may apply. Check the current fee schedule of the court where the proceedings are (Supreme, District or Local Court).

• UCPR r 35.3B(2) now requires every affidavit to include a statement that generative artificial intelligence was not used to generate its content. The current Form 37 does not print that statement, so add it to the affidavit.
• If the defendant files a defence late but before judgment is given, they are no longer in default (r 16.2(2)(c)).
• A default judgment given in the absence of the defendant can later be set aside or varied by the court (r 36.16(2)).