NSW UCPR [Form 59] Notice of Motion ➲ Writ for Possession of Land

When is a NSW UCPR [Form 59] Notice of Motion ➲ Writ for Possession of Land used?

See s.104 of the Civil Procedure Act 2005 (NSW) and UCPR 39.1, 39.2 & 39.3 for more information.

You can apply to the Court by Notice of Motion for Leave to Grant a Writ for Possession of Land if:

1️⃣ The Court has given you a Judgment for the Possession of Land; and

2️⃣ You have evidence that you have made a demand for possession on the person liable and that the person has not delivered possession.

UCPR 4.7A sets out how you are to describe the land in the Notice of Motion.  

This [Form 59] MUST be used if you are applying for a Writ for Possession of Land.

Leave of the Court is Required

39.1 Circumstances in which issue of writ requires leave

(cf SCR Part 44, rule 2)

(1) A writ of execution may not be issued in the following circumstances except by leave of the court--

(a) if there has been any change in the persons entitled or liable to execution under the judgment, whether by assignment, death or otherwise,

(b) if the judgment is against the assets of a deceased person coming to the hands of an executor or administrator after the judgment took effect, and the writ is against those assets or any of them,

(c) if a person's entitlement under the judgment is subject to fulfilment of a condition,

(d) if the writ is a Writ for the Possession of Land,

(e) if the writ is against property in the hands of a receiver appointed by the court,

(f) if the writ is against property in the hands of a sequestrator,

(g) if the writ is in aid of another writ of execution.

Note : See also section 134 of the Civil Procedure Act 2005 with respect to stale judgments.

(2) If leave is required, it may be applied for in the Notice of Motion for the issue of the writ of execution.

Notice of Motion ➲ Overview

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 (e.g. an application for default judgment on a liquidated claim).

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.

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;

✅ This Notice of Motion is normally an application dealt with by the Court under UCPR 38.6 who will decide to grant or refuse the application.

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

Contents of the Notice of Motion

See UCPR 18.3 for more information about how to describe the persons who are filing or who are affected by a Notice of Motion.

Information to Assist the Sheriff

This [Form 59] asks you to provide additional information to assist the Sheriff if the writ is granted.

You should include, where known:

✅ A short description of the claim e.g. failure to pay mortgage;

✅ A list of persons in occupation;

✅ The telephone number of the occupier(s) (if known); and

✅ Details of any animals or anything else at the address where the writ is to be executed that might pose a threat to the health and safety of the Sheriff’s officers.

Included Affidavit in Support

This [Form 59] includes an Affidavit in Support.

If judgment was obtained by default, this included Affidavit in Support of this application for writ, MUST still be made, even though the evidence required is almost the same as what was required to obtain the default judgment.

Each section of the included Affidavit in Support MUST be completed and the Affidavit signed stating that the information completed is true.

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

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

Evidence in Support required for a Grant of Leave

39.1 (Cont.)

(3) The motion for leave MUST be supported by the following evidence--

(a) evidence that the applicant is entitled to proceed to execution on the judgment,

(b) evidence that the person against whom execution is sought to be issued is liable to execution on the judgment,

(c) if the judgment is for the payment of money, evidence as to the amount due on the date of the motion,

(d) if subrule (1)(a) applies, evidence as to the change which has taken place,

(e) if subrule (1)(b) or (c) applies, evidence that a demand to satisfy the judgment has been made on the person liable to satisfy it and that the person has not satisfied it.

No Filing Fee

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

Supreme Court

As at 1 July, 2023 the NSW Supreme Court website states that there is a filing fee of $1,436 for a Notice of Motion.

However, no filing fee applies for a Notice of Motion for a Writ of Execution, which includes a Writ for Possession of Land.

Sheriff's Execution Fee

You can find out the amount of the Sheriff’s Execution Fee from the Civil Procedure Regulation 2017 (NSW).

Supreme Court

As at 1 July, 2023 the NSW Supreme Court website states that the Sheriff's Execution Fee for a Writ of Possession is $407 and includes a note that the fee may increase in August 2023.

Affidavit MUST include Solicitor's Fees

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 of taking instructions, preparing documents and filing notice of motion for writ of execution (whether or not the matter was contested) including drawing/typing/checking of notice of motion, affidavit and cheque for payment of proceeds to plaintiff:

Supreme Court ➲ $679

District Court ➲ $498

Local Court ➲ $253

No Hearing

Unless the Court orders otherwise, your application will be dealt with in the absence of the parties.

No Service Requirements unless the Court Orders

Unless the Court orders otherwise, there is no requirement to serve the Notice of Motion on the Judgment Debtor.

You MUST include the following information if the court orders that the Notice of Motion has to be served by a particular time.

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 summons, 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.