Notice of motion - default judgment on claim for possession of land and liquidated claim (Form 36A)

Form 36A combines two default judgments in one application: judgment for possession of identified land and judgment for a liquidated (fixed) amount, typically a lender's claim to recover a mortgaged property and the loan debt. Its heading cites Uniform Civil Procedure Rules 2005 (NSW) rr 16.3, 16.4, 16.6 and 36.8. The Judicial Commission's Civil Trials Bench Book notes that rr 16.3, 16.4 and 36.8 govern default judgment for possession, and that rr 16.4 and 36.8 set what the supporting affidavit must cover, including who else occupies the land. In the Supreme Court these claims sit in the Possession List under Practice Note SC CL 6, and the Bench Book says default judgment is ordinarily entered within about three weeks of the motion being filed.

When you need it

• Your statement of claim sought both possession of land and a fixed money amount, and the defendant has not filed a defence in time.
• You want judgment for possession and the debt in one motion. If you want possession only, use Form 36.
• Any occupiers who are not parties have been dealt with: their occupation is not to be disturbed, they have left, or they were served with a notice to occupier (Form 5) and the time to respond has passed.

1. 1

   Heading, filing details and orders

   Copy the court details and title from the statement of claim. Filed in relation to is fixed as the plaintiff's claim. Order 1 is possession of the land, identified by title or folio reference and street address; order 2 is judgment against the defendant for a stated dollar amount; order 3 is costs.

2. 2

   Affidavit: service and ownership

   State how and when the statement of claim and possession of land coversheet were served on each defendant, and that the defendant is the registered proprietor of the land.

3. 3

   Affidavit: occupiers

   Say whether anyone other than the parties occupied the land when the claim was filed. If so, name or describe them, say whether they occupy under a residential tenancy agreement, and choose the option that applies: not to be disturbed, no longer in occupation (with reasons), or served with a notice to occupier under UCPR r 6.8 with the response time passed. Give your source of knowledge.

4. 4

   Affidavit: default and amount owing

   If the claim arises from non-payment, give particulars of the default or attach a schedule. State the amount owing when proceedings started, any payments or credits since, and a table of the current amount owing, interest claimed (with the rate) and filing, service and solicitors' fees.

5. 5

   Swear or affirm

   Sign before an authorised witness who completes the identity certificate. The deponent and witness sign every page (UCPR r 35.7B).

• File at the registry where the statement of claim was filed, or through the NSW Online Registry, which lists this motion among its online forms. The UCPR forms site also marks Form 36A as available to file online.
• File the affidavit of service of the statement of claim with the motion. The Online Registry says the application is dealt with in the absence of the public and, once the court is satisfied Part 16 is met, the orders are recorded and can be viewed online.
• To enforce a judgment for possession, the Online Registry says you can file a notice of motion for a writ for possession of land (Form 59).
• Check the current fee schedule for the court before filing.

• In the Supreme Court, Practice Note SC CL 6 says the court may dismiss possession proceedings on its own motion if no defence or default judgment application is filed within 6 months of the claim being started.
• Bring the arrears figures up to date to the date of swearing and account for every payment since the claim was filed.
• Add a statement that generative AI was not used to prepare the affidavit. This version of the form does not include one, and Supreme Court Practice Note SC Gen 23 requires it.