Step by step guide - Applying for default judgment

You can’t apply for a default judgment unless 28 days have passed since the defendant was served with the statement of claim.

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 
  
• ​looking at the affidavit of service form  prepared by the 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.

You need two forms: 

• ​​Form 38 - Notice of motion - default judgment for liquidated claim
  
• Form 41 - Affidavit of service. (You will not need an affidavit of service form if the statement of claim was served by the court. If it was served by a process server, they should complete an affidavit of service form and give it to you.)
  

You can get copies of the forms from: 

• ​​the Local Court or
  
• the Uniform Civil Procedure Rules (UCPR) website.  

You can also complete and file these forms online using the NSW Online Regi​stry.

The person who served the statement of claim needs to fill out an affidavit of service form and sign it in front of a lawyer or a justice of the peace (JP).  

If you have paid a process server to serve the statement of claim, they will usually give you an affidavit of service form.

If you served the statement of claim on the defendant, you will need to fill out and sign the affidavit of service form. You should include in the affidavit of service:

• ​​​​the date you served the defendant
  
• how you served the defendant (for example, in person, at a business address, by post, by fax or by email)
  
• what you served on the defendant (in this case a statement of claim)
  
• the name of the person who accepted service (if it wasn't the defendant)
  
• a statement that you are over 16 years of age. 
  

You do not need to annex (attach) a copy of the statement of claim to the affidavit of service form. 

For information on filling out and signing an affidavit of service form, see  Step by step guide - Serving a statement of claim.

You can fill out your form:

• ​​​on the NSW Online Registry​.  
  
• by completing it on your computer
  
• by printing the form 
  
• and completing it in blue or black pen.
  

Have your copy of the statement of claim and the affidavit of service with you while you fill out the notice of motion form.

To fill out the notice of motion form you will need the following information: 

• ​​your case number - you can find this on your stamped copy of the statement of claim
  
• the date that the defendant was served with the statement of claim
  
• the amount of any payments made to you by the defendant since the statement of claim was filed
  
• a re-calculated amount of interest up to the date of signing the notice of motion 
  
• the name of the person who signed the affidavit of service form and the date it was signed.
  

For information about how to calculate interest, see  Step by step guide - Working out pre-judgment interest.

In the notice of motion, under the heading 'Affidavit' you need to set out: 

• ​the amount of the debt when you filed the statement of claim
  
• any payments made by the defendant since you filed the statement of claim, or that no payment has been made
  
• the amount of interest you are claiming up to the date of signing the notice of motion form
  
• the amount you are claiming for filing and service fees
  
• how and when the statement of claim was served on the defendant
  
• how you know about the information in the affidavit.  
  

Instructions: Instructions - Notice of motion - default judgment for liquidated claim​. 

Sample: Sample notice of motion - default judgment for liquidated claim. 

The affidavit  must be signed in front of a lawyer or justice of the peace (JP) who mus​t also witness it. For more information about where to find a Justice of the Peace, see Find a JP on the Department of Communities & Justice website.

For more information on signing affidavits, see Affid​avits, statements and statutory declarations in the  Reading and writing legal documents topic.

If you did not file the form on the NSW Online Registry, you will need to take or send the notice of motion and the affidavit of service to the local court where the statement of claim was filed. 

You must file the notice of motion within 14 days of signing the affidavit in the notice of motion (not the affidavit of service).

You need to file the original plus one copy. The court will keep the original and return the stamped copy to you. 

There is no filing fee for the notice of motion and the affidavit of service, and you do not have to serve the documents on the defendant.  

The registrar at the local court will decide whether to give you default judgment. You do not have to attend court. 

Generally, the court will give you default judgment if the notice of motion and affidavit of service show: 

• ​that the defendant was properly served with the statement of claim
  
• that it has been more than 28 days since the date of service
  
• that the defendant has not paid you the money you have ​claimed, and
  
• the court records show that the defendant has not filed a defence or an acknowledgment of liquidated claim. 
  

Once you have a default judgment you can enforce the judgment against the defendant. For more information, see Enforcement.