New South Wales Consolidated Regulations

UNIFORM CIVIL PROCEDURE RULES 2005 - REG 39.3

39.3 Affidavit in support of application for writ of execution

(cf DCR Part 34, rule 13)

(1) Unless the court orders otherwise, an applicant for a writ of execution must file an affidavit in support of the application, being an affidavit sworn not more than 14 days before the date of filing.

(2) In the case of a writ for the possession of land, the affidavit in support--

(a) must identify any persons (other than parties to the proceedings) who were in occupation of the whole or any part of the land--

(i) as at the time the originating process was filed, or

(ii) if the claim for possession arises from an amendment to the originating process, as at the time the amendment was made,

and, if any such person was in occupation of the land pursuant to a right of occupation under a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 , must contain a statement to that effect, and

(b) in relation to each such person--

(i) must state that the person's occupation of the land is not to be disturbed, or

(ii) must state that the person is no longer in occupation of any part of the land, or

(iii) must state that the person has been served with a notice pursuant to rule 6.8 or rule 36.8A and that the time allowed for the person to apply to the court to be joined as a defendant or to stay enforcement of the judgment, as required, has now passed,

as the case requires, and

(c) if the claim for possession of the land arises from a default in the payment of money, must give the particulars required under subrule (2A), and

(d) must state the source of the deponent's knowledge of the matters stated in the affidavit concerning the occupation of the land and any default in the payment of money referred to in paragraph (c), and

(e) must state whether costs are claimed and, if costs are claimed and the costs claimable are fixed by law, the amount (not exceeding the amount so fixed) that is claimed for costs.

Note--: The costs fixed by law referred to in paragraph (e) include costs that are fixed under section 59(1)(d) of the Legal Profession Uniform Law Application Act 2014 .

(2A) The particulars required for the purposes of subrule (2)(c) are--

(a) if judgment has been entered for the payment of money in addition to possession of the land--each of the following particulars--

(i) the amount of the judgment debt,

(ii) the amount of interest accruing on the judgment debt to date,

(iii) any payments made by or on behalf of the judgment debtor after judgment was entered,

(iv) the current amount owing taking into account the matters referred to in subparagraphs (i), (ii) and (iii), or

(b) if judgment has been entered only for possession of the land--each of the following particulars--

(i) the amount owing following the default,

(ii) any payments made to date to reduce the amount owing,

(iii) the current amount owing taking into account any such payments.

(3) In the case of a writ for the delivery of goods, the affidavit in support--

(a) must state which goods have not been delivered to the plaintiff since the time the judgment was given, and

(b) must give particulars of any payments that the defendant has made to the plaintiff in respect of the goods or state that no such payments have been made, as the case may be, since the time the judgment was given, and

(c) must state the address at which the goods are alleged to be located.

(4) In the case of a writ for the levy of property, the affidavit in support--

(a) must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit, and

(b) must state the address or addresses at which property belonging to the judgment debtor may be located, and

(c) if the judgment was entered as a result of the filing of a cost assessor's certificate, must include a statement to that effect, together with a statement to the effect that the determination set out in the certificate--

(i) is not subject to any suspension under section 86 of the Legal Profession Uniform Law Application Act 2014 that has not been ended under that section, and

(ii) is not subject to any suspension under section 90 of the Legal Profession Uniform Law Application Act 2014 that has not been ended under that section.

(5) Any application by the judgment creditor for a writ of execution in relation to a judgment debt that has been the subject of an instalment order that has ceased to have effect may not be granted unless the judgment creditor has filed an affidavit as to the judgment debtor's failure to comply with the order.

(6) A reference in this rule to a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 is taken to include a reference to a residential tenancy agreement within the meaning of the Residential Tenancies Act 1987 as in force before its repeal.