NSW UCPR [Form 39] Notice of Motion ➲ Default Judgment for Unliquidated Damages

When is a NSW UCPR [Form 39] used?

Unless the Uniform Civil Procedures Rules (NSW) 2005 (UCPR) provide otherwise, you MUST prepare a Notice of Motion if you are making an interlocutory or other application in the proceedings (see UCPR 18.1).

The courts receive large numbers of some types of applications (An application Notice of Motion ➲ Default Judgment on a Liquidated Claim is one of the most common).

The Uniform Rules Committee has approved specific forms for the more common types of Notice of Motion.

You MUST use the specific form if one has been approved for the type of application you are making to the court.

NSW UCPR [Form 39] is the Approved Form for a Notice of Motion ➲ Default Judgment for an Unliquidated Damages Claim

See UCPR 16.3 and 16.7 for more information.

For an an application for Default Judgment on an Unliquidated Damages Claim this NSW UCPR [Form 39] is the specific form approved by the Uniform Rules Committee that MUST be used.

The UCPR allow the court to deal with some Notices of Motion (including this [Form 39] Notice of Motion ➲ Default Judgment on an Unliquidated Damages Claim) in the absence of the parties.

Document Overview:

✅ Suitable for the NSW Courts under the Uniform Civil Procedure Rules (NSW) 2005;

✅ Recommended only for use by legal professionals +/or at a minimum with review by a legal professional prior to filing with the Court;

✅ For use in all NSW Court registries for all NSW Courts including Local (General & Small Claims), District (All Lists^), and the Supreme (Common Law & Equity Divisions).

Embedded Lawyer-Logic™ dynamically adapts to your answers to provide valuable guidance and help you avoid errors.

Step-by-Step Guide

You can apply for Default Judgment for an Unliquidated Damages Claim using this [Form 39] Notice of Motion if:

1️⃣ You have claimed an unspecified amount for damages in your Statement of Claim;

2️⃣ The defendant is ‘in default’ in relation to the claim (see UCPR 16.2); and

3️⃣ You have waited until 28 days after the Statement of Claim was served on the Defendant.

4️⃣ If the Registrar enters judgment in your favour, the Registrar will then refer the Motion to the court to quantify the amount of the damages and costs.

1️⃣ Have you filed and served one of these Statements of Claim for an unspecified amount of damages (i.e., Unliquidated Sum)?

NSW UCPR [Form 3A] Statement of Claim ➲ Legally Represented

NSW UCPR [Form 3B] Statement of Claim ➲ Self-Represented / Authorised Company Officer or Employee / Debt Collector / Real Estate Agent / Strata Managing Agent / On-Site Residential Property Manager

2️⃣ Definition of Default

UCPR 16.2 defines 'in default' as follows:

❌ If the defendant fails to file a defence within the time limited by rule 14.3(1) or within such further time as the court allows, or

❌ If the defendant fails to file any affidavit verifying his or her defence in accordance with any requirement of these rules, or

❌ If, the defendant having duly filed a defence, the court orders the defence to be struck out.

Despite the above, a defendant is not in default if the defendant--

✅ Has settled the matter under rule 16.7, or

✅ Has filed a Defence after the time limited by these rules or allowed by the court, but before a Default Judgment is given against the defendant.

3️⃣ Determining when the Defendant was Served?

If you did not serve the Statement of Claim yourself, you can find out when it was served by: 

​​⚖️ Calling the court, if the court served the Statement of Claim by post; or

​⚖️ Looking at the Affidavit of Service form  prepared by your Process Server.

For service by post on an individual or a company, the Statement of Claim is taken to be served on the fourth working day after it was posted. 

For service on a business operating under a business name or a partnership, the Statement of Claim is taken to be served at the end of seven days after the day it was posted. 

If the 28th day falls on a weekend or a public holiday, the defendant will be able to file their defence form up to the end of the next working day.

4️⃣ Registrar refers the Motion to the Court to Quantify the Damages + Costs

If the registrar enters judgment in your favour, the registrar will then refer the motion to the court to quantify the amount of the damages + costs.

[Form 39] includes an Affidavit in Support

When filing a [Form 39] Notice of Motion ➲ Default Judgment for an Unliquidated Damages Claim you MUST prepare and file the included Affidavit in Support of your application.

The Affidavit in Support should be made by the person or persons who have knowledge of the facts that are included in the Affidavit or include reference to the
source of the person’s knowledge and belief.

For detailed instructions regarding properly making the Affidavit please refer to this FAQ.

Affidavit MUST include Solicitor's Fees & Process Server Costs

The Affidavit in Support MUST state whether costs are claimed and, if so, how much is claimed for costs, indicating--

(i) how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 59 of the Legal Profession Uniform Law Application Act 2014.

Schedule 1 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) sets out the amounts you are entitled to claim for Solicitors’ Fees in each of the NSW Courts.

Costs on obtaining judgment in undefended proceedings including all matters listed in Item 1 and Item 4 (District)/2 (Local) of this Part:

Supreme Court ➲ Not Listed

District Court ➲ $1,711

Local Court ➲ $1,574

Item 1 [Costs of taking instructions, preparing documents and filing statement of claim for recovery of lump sum debt including drawing/typing/checking of originating process and cheque to pay account of process serve]; and

Item 4/2 [Costs on applying for default judgment for recovery of lump sum debt, claim for possession of land or claim for detention of goods, including all matters listed in item 1 of this Part plus drawing/typing/checking affidavit of service, notice of motion and affidavit in support].

Affidavit MUST include Filing Fees

Schedule 1 of the Civil Procedure Regulation 2017 (NSW) sets out the amount the Court charges for filing the Statement of Claim and the Notice of Motion.

Supreme Court

As at 1 July, 2023 the NSW Supreme Court website quotes the following filing fees for a Statement of Claim:

➲ Individual $1,297

➲ Corporation^ $3,550

For a Notice of Motion for Default Judgment no filing fee is charged.

^ Corporation filing fees apply to: Local Government, councils, companies Inc, Pty Ltd, cooperatives, medical funds, permanent trustees, universities, unincorporated associations, religious organisations, private schools, private hospitals, Local Area health networks, charities.

Under clause 4(4) of the Civil Procedure Regulation 2017 an individual rate may be applied if income is less than $200,000.00 per annum.

Evidence must be provided & an application approved.

Where there are multiple parties and one of the parties is a corporation then the corporation or organisation fee will apply.

Sole traders are charged the individual rate.

*In accordance with the Interpretation Act 1987, the definition of 'The Crown' does not extend to Commonwealth Crown or statutory bodies

District & Local Courts

Filing fees in the District and Local Courts are substantially lower than the prescribed fees in the Supreme Court.

Financial Hardship

A party under financial hardship may file an application to delay or waive the court filing fees.

Affidavit of Service

You MUST also file an Affidavit of Service deposing that the defendant was served with the Statement of Claim more than 28 days before you file the Notice of Motion.

Proceed to Form 41 for the Affidavit of Service.

The date the Affidavit of Service is sworn or affirmed MUST be not be more than 14 days before the date on which the Notice of Motion is filed.

For detailed instructions regarding properly making the Affidavit please refer to this FAQ.

No Hearing

The registrar will deal with your application in the absence of the parties.

Service Requirements

See UCPR 18.2, 18.4 and 18.5 for more information about how and when to serve a Notice of Motion.

You MUST include the street address, postal address and telephone number of the court registry.

You should copy the registry street address, postal address and telephone number from the Statement of Claim; or

If relevant, include details of the street address, postal address and telephone number of the registry where the court has transferred the proceedings.

Legal Advice Recommended

The type of Notice of Motion you are filing with the NSW Courts will determine whether a specific UCPR form is required to be filed, and what documents are required to be filed in support.

In short, due to the complexities involved in determining which form of Notice of Motion to use, together with the crucial importance of getting the details of the motion and supporting documentation right to the success of your motion:

➲ We recommend you contact our legal team to obtain legal advice and guidance regarding which:

⚖️ Forms are required due to the type of Notice of Motion is being made; and which

⚖️ NSW Courts Practice Note (if any) applies; and accordingly which

⚖️ Documents MUST or may be filed in support of your Notice of Motion.

Important Note:

The party filing this Form is required to serve a copy of the filed Form together with all other filed documents on all other parties to the proceeding.