Notice to Occupier (Form 5)

When a plaintiff claims possession of land and someone other than the defendant is in occupation, the plaintiff must either state that it does not seek to disturb that person or serve the claim on them with a notice that they may apply to be added as a defendant, failing which they may be evicted under a judgment given in their absence (Uniform Civil Procedure Rules 2005 (NSW) r 6.8). Form 5 is that notice. Its heading also cites r 36.8A, which deals with an interstate judgment for possession registered in NSW; in that case the notice tells the occupier they may apply to stay enforcement. The Bench Book notes it is customary to serve the notice whether or not other occupiers are known.

When you need it

• You are serving a statement of claim for possession of land (with the possession of land coversheet, Form 93) and people other than the defendants may be living there.
• You have registered an interstate judgment for possession in NSW and need to serve occupiers.
• You want to rely on the occupier option in the default judgment affidavit in Form 36 or 36A.

1. 1

   Court details and title

   Copy the court details and party names from the statement of claim or registered judgment.

2. 2

   Occupier's details

   Give the occupier's name if known, and describe the land being occupied.

3. 3

   Choose the alternatives in the notice

   Paragraphs 1 to 3 have options marked with #. For an ordinary claim choose the statement of claim wording (they may apply to be added as a defendant; the court may enter judgment in their absence). For a registered interstate judgment choose the judgment wording (they may apply to stay enforcement; the court may issue a writ for possession). Delete the options that do not apply.

4. 4

   Signature

   Sign as or for the plaintiff, with capacity and date. The notice already includes where to get information: a lawyer, LawAccess NSW or the court registry.

• Serve the notice on each occupier together with the statement of claim and possession of land coversheet, or with the registered judgment and the interstate claim.
• The occupier has 10 days after service to apply to the court; after that, the court may give judgment or issue a writ for possession in their absence.
• Keep proof of service. The default judgment affidavit in Form 36 and 36A asks you to state that occupiers were served with a notice under r 6.8 and that the time to respond has passed.

• If you do not know names, address the notice to the occupiers and describe the land precisely.
• In the Supreme Court, Practice Note SC CL 6 lists joinder applications by occupiers among the Possession List applications that need no leave and are dealt with by a registrar.
• An occupier who receives this notice and wants to stay should get legal advice quickly because the 10 days is short.