Notice of motion - default judgment for unliquidated damages (Form 39)

When a defendant served with a statement of claim does not file a defence, the plaintiff can ask the court for judgment without a hearing. Form 39 is the approved notice of motion for that step where the claim is for unliquidated damages, meaning an amount the court still has to assess (for example damages for negligence or breach of contract), rather than a fixed debt. Its heading cites Uniform Civil Procedure Rules 2005 (NSW) rr 16.3 and 16.7. The order sought is judgment for the plaintiff for damages to be assessed, plus costs, so liability is decided by the default but the amount is fixed at a later assessment. A sworn affidavit forms part of the form. For a fixed money claim the plaintiff uses Form 38 instead, and for possession of land Forms 36 or 36A.

When you need it

• You started proceedings by statement of claim in the NSW Supreme, District or Local Court and the claim is for damages that the court must assess.
• The time for the defendant to file a defence has passed and no defence has been filed. Legal Aid NSW's checklist says to confirm more than 28 days have passed since service.
• You want judgment on liability now, with the amount of damages to be assessed at a later hearing.

1. 1

   Court details and title

   Copy the court, division, list, registry, case number and party names exactly as they appear on the sealed statement of claim.

2. 2

   Filing details and person affected

   Name the plaintiff as the person seeking orders and each defendant (or cross-defendant) you want judgment against under Person affected by orders sought. The motion is marked to be dealt with in the absence of the parties.

3. 3

   Orders sought

   Order 1 is judgment for the plaintiff against the named defendant for damages as claimed in the statement of claim, to be assessed. Order 2 is that the defendant pay the plaintiff's costs. Sign as legal representative or as the party.

4. 4

   Affidavit: who you are and your source of knowledge

   On the separate affidavit page, state that you are the plaintiff or explain your capacity (for example an officer of a company plaintiff), and say how you know the facts about the claim.

5. 5

   Affidavit: service, no settlement and costs

   State how and when the statement of claim was served on each defendant (personally, by post, or under an order for substituted service), and if relying on someone else's affidavit of service, name it and give its date. Confirm the matter has not settled and set out the filing, service and solicitors' fees claimed.

6. 6

   Swear or affirm

   Sign before a justice of the peace, solicitor, barrister or other authorised witness, who completes the identity certificate. The deponent and witness sign every page (UCPR r 35.7B).

• File the notice of motion with the affidavit of service of the statement of claim (UCPR Form 41) at the registry where the statement of claim was filed. No affidavit of service is needed where the Local Court itself served the statement of claim (UCPR r 16.3(3)).
• The UCPR forms site does not mark Form 39 as available to file online, and the NSW Online Registry's online default judgment forms are Forms 36A and 38, so expect to file Form 39 at the registry.
• The motion is dealt with in the absence of the parties. After judgment on liability, the court will deal with the assessment of damages.
• Check the court's current fee schedule before filing.

• Pick the right default judgment form. Form 39 only gives judgment for damages to be assessed; if the claim is for a fixed debt, Form 38 gets you judgment for the amount itself.
• This version of the form has no statement that generative AI was not used. Supreme Court Practice Note SC Gen 23 requires affidavits to contain that disclosure, and Legal Aid NSW says the rules now require it, so add one to the affidavit.