Notice of motion - default judgment for liquidated claim (Form 38)

Where a defendant is in default (usually no defence within 28 days after service of the statement of claim, UCPR rr 14.3 and 16.2) and the claim is for a debt or liquidated sum, judgment may be given for a sum not exceeding the amount claimed, interest up to judgment and costs (r 16.6(1)). Form 38 (version 4) is the approved notice of motion and includes the affidavit in support. The affidavit must state the amount due when the proceedings started, any reduction from payments or credits since, the source of the deponent's knowledge, the interest claimed, the costs claimed and when and how the statement of claim was served (r 16.6(2)).

When you need it

• You sued for a fixed amount of money (a debt or liquidated claim) by statement of claim and the defendant has not filed a defence in time.
• The defendant has not paid the claim, interest and fixed costs under r 6.17 or filed an acknowledgment of the claim under r 20.34, either of which means they are not in default (r 16.2(2)).
• For a claim for return of goods use Form 37; for unliquidated damages the judgment is for damages to be assessed (r 16.7).

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 in default.

2. 2

   Orders sought

   Order 1 is judgment for a stated dollar amount; order 2 is costs. The motion is to be dealt with in the absence of the parties.

3. 3

   Affidavit paragraphs 1 to 3

   The deponent states their capacity, the source of their knowledge of the debt, and when and how the statement of claim was served on each defendant.

4. 4

   Affidavit paragraphs 4 to 6

   State the amount owing when proceedings commenced, any payments or credits since, and a table of the current amount owing, interest claimed (stating the rate, for example the prescribed rate under r 6.12(8) or a contract rate), filing fees, service fees and solicitor's fees, with a total. Professional costs cannot exceed the amount fixed under s 59 of the Legal Profession Uniform Law Application Act 2014.

5. 5

   Swearing and witness certificate

   Sworn or affirmed before an authorised witness who completes the identification certificate. The deponent and witness sign every page (r 35.7B).

• The NSW Online Registry accepts Notice of Motion - Default Judgment for Liquidated Claim (UCPR 38) online. The supporting affidavit forms part of the online form, but an affidavit of service (Form 41) must be filed separately.
• Unless the court orders otherwise, the motion is dealt with in the absence of the parties and need not be served on the defendant (r 16.3(1A)).
• The affidavit must have been sworn within 14 days before filing (r 16.3(4)). No affidavit of service is needed where the Local Court served the statement of claim (r 16.3(3)).
• A filing fee may apply. Check the current fee schedule of the court where the proceedings are (Supreme, District or Local Court).

• Add the statement that generative artificial intelligence was not used to generate the affidavit's content: UCPR r 35.3B(2) requires it and the current Form 38 does not print it.
• Do not claim more than the statement of claim sought: judgment cannot exceed the sum claimed (r 16.6(1)(a)).
• Re-check payments received since filing; the affidavit must account for any reduction (r 16.6(2)(b)).