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

Form 36 asks the court to give judgment for possession of land, identified by title reference and address, where the defendant has not filed a defence. It is most often used by mortgagees, but the form also covers claims that do not arise from unpaid money. Its heading cites Uniform Civil Procedure Rules 2005 (NSW) rr 16.3, 16.4 and 36.8. The Judicial Commission's Civil Trials Bench Book explains that rr 16.4 and 36.8 set what the supporting affidavit must contain, including the position of any occupiers who are not parties. In the Supreme Court, possession claims are entered in the Possession List and Practice Note SC CL 6 applies. Form 36 seeks possession and costs only; Form 36A adds judgment for a fixed amount.

When you need it

• Your statement of claim sought possession of land and the defendant has not filed a defence in time.
• You want possession only, without judgment for a money sum (for that, use Form 36A).
• You have dealt with any non-party occupiers, for example by serving a notice to occupier (Form 5) and letting the response time pass.

1. 1

   Heading and orders

   Copy the court details and title from the sealed statement of claim. Order 1 is judgment for possession of the land comprised in the stated title or folio reference and known by its street address. Order 2 is costs.

2. 2

   Affidavit: capacity, service and ownership

   Say who you are, how and when the statement of claim and possession of land coversheet were served on each defendant (naming any affidavit of service relied on), and that the defendant is the registered proprietor.

3. 3

   Affidavit: occupiers

   Paragraphs 4 to 7 deal with anyone else in occupation when the claim was filed: who they are, whether they hold under a residential tenancy agreement, and whether their occupation is not to be disturbed, they have left, or they were served under UCPR r 6.8 and the time has passed. Paragraph 6 is mandatory if there were occupiers. State your source of knowledge.

4. 4

   Affidavit: default

   If the claim arises from a money default, give particulars (the form suggests figures as at a date within the last fortnight) or attach a schedule; otherwise state the claim is not based on a payment default. List filing, service and solicitors' fees.

5. 5

   Swear or affirm

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

• File with the affidavit of service at the registry where the statement of claim was filed, or online: the NSW Online Registry lists default judgment for possession of land (Forms 36/36A) among its online forms.
• The motion is dealt with in the absence of the parties. In the Supreme Court Possession List, matters are managed in the Online Court and the Registrar, Common Law Case Management deals with applications to set aside default judgment (Practice Note SC CL 6).
• Judgment for possession is enforced by a separate notice of motion for a writ for possession of land (Form 59).
• Check the court's current fee schedule.

• Practice Note SC CL 6 warns that Supreme Court possession proceedings can be dismissed if no defence or default judgment application is filed within 6 months of filing the claim.
• Describe occupiers as precisely as you can. The form gives examples such as a number of unidentified occupiers who refused to give their names.
• Add a statement to the affidavit that generative AI was not used; this version of the form predates that requirement (Practice Note SC Gen 23).