NSW UCPR [Form 61] Notice of Motion ➲ Writ for Restitution of Land

When is a NSW UCPR [Form 61] Notice of Motion ➲ Writ for Restitution of Land used?

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

1️⃣ A defendant resumes possession of a property after a [Form 60] Writ of Possession of Land has been executed.; or

2️⃣ A defendant is successful in having a Judgment for Possession and a Writ of Possession set aside.

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

This [Form 61] MUST be used if you are applying for a Writ for Restitution of Land.

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 61] includes an Affidavit in Support.

If judgment for possession 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.

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 Restitution 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.