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Where am I now? Lawlink > Supreme Court > Practice and Procedure > Practice Notes > Supreme Court Common Law Division - Possession List
Supreme Court Common Law Division - Possession List
PRACTICE NOTE SC CL 6 Supreme Court Common Law Division - Possession List Commencement 1. This Practice Note was issued and commenced on 2 November 2007. Application 2. This Practice Note applies to proceedings in, or to be entered in, the Possession List. Definitions 3. In this Practice Note:
List means the Possession List UCPR means the Uniform Civil Procedure Rules 2005 Introduction 4. The purpose of this Practice Note is to explain the operation of the List which is provided for by UCPR Rule 45.4. 5. UCPR Rule 45.4(1) specifies that, subject to exceptions in Rule 45.4(2), proceedings in the Common Law Division in which a claim for possession of land is made are to be entered in the List. Short form of Statement of Claim 6. In the case of a claim for possession, or possession and debt, against a Defendant who is a borrower/mortgagor, it is open to the Plaintiff to commence proceedings by filing a short form of Statement of Claim in accordance with Annexure 1 of this Practice Note. The principal purpose of the short form is to provide a simplified form of pleading to facilitate an understanding by the Defendant of the nature of the claim which is brought and of the practical consequences which may result. 7. The short form is not a prescribed form, nor is its use compulsory. A Plaintiff may commence proceedings by way of a Statement of Claim pleaded in conventional form, in particular where the claim is not straightforward and involves additional parties (including guarantors). It is necessary for a Statement of Claim, whether or not in short form, to comply with the requirements as to pleadings contained in UCPR Rule 14.15. Cover sheet to Statement of Claim 8. The cover sheet to the short form Statement of Claim (Annexure 2), which incorporates information for the Defendant translated into several different languages, is appropriate for use with all initiating process in the Possession List, including both the conventional form and short form of Statement of Claim. Removal from the list 9. Upon proceedings being removed from the List, this Practice Note shall not, subject to paragraph 10 below, apply to the proceedings from the making of the order. 10. The Court may direct that this Practice Note shall continue to apply to the proceedings to the extent stated in the direction. 11. The making of an order removing proceedings from the List shall not affect any orders made or directions given prior to such removal. Directions hearings 12. Defended proceedings in the List will be managed by way of Directions Hearings, the first of which will be appointed upon a date approximately one month after the filing of a defence or cross-claim. 13. Upon a defence or a cross-claim being filed, the registry will give notice to all parties with an address for service in the proceedings of the date of the first Directions Hearing. 14. Directions Hearings will be held daily before the Registrar, Common Law Case Management, at 9:00am. Action prior to directions hearing 15. It is expected that, where practicable, the parties’ solicitors will have discussed the case before the initial Directions Hearing and will have: 16. In this Practice Note ADR includes: Representation 17. Each party not appearing in person must be represented at the Directions Hearing by a barrister or a solicitor familiar with the subject matter of the proceedings and with instructions sufficient to enable all appropriate orders and directions to be made. Action at directions hearing 18. At a Directions Hearing the Court may give directions and make orders as it considers appropriate with a view to the just, quick, cheap and effective management and disposal of the proceedings. Orders or directions may include: 19. At a Directions Hearing, the Court will consider whether the proceedings are suitable for ADR. Legal practitioners should ensure that instructions have been obtained prior to a Directions Hearing so that it may be indicated to the Court whether the matter can be mediated. 20. If the matter appears to the Court to be appropriate for resolution by mediation, the Court will refer the proceedings for mediation with or without the consent of the parties. 21. The Court may give directions requiring statements from parties including a timetable to enable parties to be prepared for mediation. Call-Up of delayed defended matters 22. There will be a quarterly call-up before the Possession List Judge of defended matters in which there is no listing for final hearing or referral for mediation and (subject to the determination of the Possession List Judge in a particular case) more than nine months have elapsed since the filing of a defence or cross-claim. At the call-up, the parties and/or their legal representatives will be required to explain to the Court why the matter has not been listed for final hearing and what steps have been and are being taken to comply with the parties’ statutory duty to assist the Court to further the overriding purpose of the Civil Procedure Act 2005 and the UCPR of facilitating the just, quick and cheap resolution of the real issues in the proceedings (s.56 Civil Procedure Act 2005). The Court will have regard to the guiding principles contained in ss.56-60 Civil Procedure Act 2005 and will utilise appropriate case-management measures with a view to eliminating unreasonable delay between the commencement of proceedings and their final determination (s.59). Joint statement 23. When ready for trial, proceedings will be listed by the Registrar, Common Law Case Management, for hearing. Where matters are listed for hearing, a standard direction that all parties are to complete, sign and file at least 7 days prior to the hearing date a clear, concise, joint statement of matters of fact and law that are really in dispute and nominating the evidence specifically relevant to those matters, is deemed to have been made, unless the Court otherwise orders. Non-urgent applications for stay 24. A non-urgent application to stay the execution of a writ of possession arises where no time has been fixed for the Sheriff to take possession of the property or such time has been fixed and that time is more than four working days from the time when application is brought to stay the execution of the writ. In these circumstances, the application should be brought by Notice of Motion and Affidavit in support, to be served on the opposing party, with the application to be listed for hearing before the Registrar, Common Law Case Management. Annexed to the affidavit should be any documents to be relied upon by the applicant, such as: Urgent applications for stay 25. Urgent applications to stay the execution of a writ of possession arise where a time has been fixed for the Sheriff to take possession of the property and that time is less than four working days from the time of the stay application. In those circumstances, application should be made to the Duty Registrar who is available from 9:00am to 5:00pm each weekday. Applicants should ordinarily produce an affidavit in support annexing documentary material, such as: 26. A Duty Registrar determining an urgent stay application on an ex parte basis may order that the execution of a writ of possession be stayed for a period (usually not exceeding seven working days) and direct the applicant to file and serve a Notice of Motion seeking appropriate orders and an Affidavit in support of the motion, and may abridge time for service of any order and motion, and list the matter before the Registrar, Common Law Case Management. In the event that an ex parte stay is granted, the Duty Registrar should record short reasons for granting the stay by reference to the relevant circumstances referred to in paragraph 25. 27. In the ordinary course, an officer of the Court will inform the Sheriff by facsimile if an ex-parte stay has been granted and will provide the Plaintiff’s solicitor by email or facsimile with copies of the Court order and any affidavit relied upon on the stay application. 28. In the case of an applicant who has previously been granted a stay, unless there is good reason not to do so, the Duty Registrar should stand down an urgent application, and require the applicant to notify the Plaintiff that application for a stay is to be made so as to permit that party an opportunity to appear on the application. Where the Plaintiff does not oppose an urgent stay application, the Duty Registrar should determine the application. Where the Plaintiff opposes an urgent stay application, the Duty Registrar should refer the application to the Registrar, Common Law Case Management, so that the application may be heard and determined in open court. Stay Applications Generally 29. The Duty Registrar or Registrar, Common Law Case Management, may refer the proceedings under UCPR Rule 49.16 to the Duty Associate Judge for consideration: 30. Apart from the circumstances referred to in paragraph 29 above, it is expected that all stay applications in Possession List matters will be considered and determined by the Registrar, Common Law Case Management or a Duty Registrar. 31. If a stay application is made directly to the Duty Associate Judge or to the Duty Judge, the applicant will be directed to the Duty Registrar. 32. Applications, to which all relevant parties consent, may be dealt with at any time by arrangement with the Registrar, Common Law Case Management. 33. Applications for summary disposal will be listed at a Directions Hearing for referral to the Duty Associate Judge for determination. 34. Applications to set aside default judgment will be heard by the Registrar, Common Law Case Management. Listing for hearing 35. When ready for trial, proceedings will be listed by the Registrar, Common Law Case Management, for hearing with no priority over other proceedings unless an order for expedition is made. 36. All applications for expedition should ordinarily be made in the first instance to the Registrar, Common Law Case Management. Adjournment 37. To ensure efficient use of Court time, proceedings fixed for trial will not normally be adjourned unless special circumstances have arisen which could not have been foreseen. 38. An application for adjournment requires supporting affidavits. 39. An application for adjournment will not usually be granted unless the party on whose behalf the application is made is present at the time the application is made or has sworn an affidavit verifying that that party is aware of the reasons for the application and identifying those reasons. Inactive proceedings 40. If a defence or application for default judgment is not filed within 6 months of the claim being instituted, the Court may dismiss the proceedings on its own motion pursuant to UCPR Rule 12.8. 41. The Court will give the plaintiff notice that the claim (or where appropriate, the proceedings) will be dismissed unless, within a specified period, the plaintiff notifies the Court of its desire to show cause why an order for dismissal should not be made. 42. The Court may, if the plaintiff gives notice in accordance with paragraph 41, list the proceedings for further consideration by the Registrar, Common Law Case Management or the Possession List Judge, or otherwise dismiss the claim or the proceedings. 43. Paragraph 40 does not apply to proceedings, or to a claim, that have or has been disposed of by judgment, final order, discontinuance or dismissal. Summary disposal 44. An application for summary disposal, made after proceedings are listed for hearing by the Registrar, Common Law Case Management, will be heard at the same time as the substantive proceedings, unless the Court otherwise orders. Default judgment 45. Entry in the List will not affect a party’s entitlement to apply for default judgment. J J Spigelman AC Chief Justice of New South Wales 2 November 2007 Related information See also: Practice Note SC CL 1 Supreme Court Common Law Division - General Practice Note SC Gen 1 Supreme Court – Application of Practice Notes Practice Note SC Gen 6 Supreme Court – Mediation Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Amendment history: 2 November 2007: This Practice Note replaces the previous version of SC CL 6 issued on 17 August 2005. 17 August 2005: Practice Note SC CL 6 replaced Former Practice Note No. 106. ANNEXURE 1 Supreme Court Short Form of Statement of Claim for Possession [and Debt] against a Borrower/Mortgagor
[On a new page, replace the Notice to defendant and How to respond sections of the approved form of Statement of claim with the following:]
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