On 2 November 2007 the Supreme Court of New South Wales issued a new Possession List Practice Note.
Our practitioners have had considerable input in the drafting of the new Practice Note as members of the Supreme Court’s Possession List Users Group.
Key Issues Affecting Possession Practice
- translated cover sheet likely to reduce the number of urgent applications to stay execution of writs of possession.
- delegation of additional powers by the supreme court to chief clerks will substantially reduce turnaround time for applications considered in the absence of parties.
- the rollout of justicelink will reduce the duplication of data across courts, allow faster and easier access to information, and improve case management.
- lenders will benefit from a more streamlined and efficient possession practice due to the new Practice Note, revised court forms and, in time, JusticeLink.
Short Form Statement Of Claim
Lenders may elect to file a short form statement of claim for possession against a borrower/ mortgagor. The main purpose of the short form statement of claim is to provide a simplified form of pleading so a borrower/mortgagor understands the nature of the claim which is brought and the practical consequences which may result.
Use of the short form statement of claim is not compulsory. Lenders may commence proceedings by way of a statement of claim pleaded in the conventional form, in particular where the claim is not straightforward and involves additional parties (including guarantors).
Cover Sheet In 16 Other Languages
The Practice Note also provides a cover sheet, which incorporates information for the borrower/ mortgagor translated into the 16 most commonly spoken languages in Australia aside from English. It may be served with all initiating process in the Possession List.
The intention of this cover sheet is to ensure that regardless of whether borrowers/mortgagors can read English, they will understand that a serious legal document is being served on them and they must do something about it within 28 days or risk the consequences.
We will serve this cover sheet with any statement of claim for possession of land as a matter of course to assist us to combat arguments from borrowers at the enforcement stage of proceedings that they did not understand that they needed to take prompt steps at the time they received it. We are optimistic that this will improve the efficiency of possession proceedings and reduce the number of urgent applications to stay execution of writs of possession.
Applications For Stay
The Practice Note is now much clearer about the documents that a person seeking a stay of eviction must provide both to the court and to the lender or its legal representatives.
Urgent applications (where a time has been fixed for the Sheriff to take possession of the property in less than 4 working days) will generally be dealt with by the Duty Registrar in chambers. The Practice Note recognises that applicants seeking an urgent stay have often failed to prepare the required motion and supporting affidavit and have not informed the lender’s lawyers.
Instead of causing lenders to incur the cost of running up to court to deal with an application for which they have not had an opportunity to obtain instructions or prepare a response, the Practice Note envisages that on the first occasion a borrower/mortgagor seeks a stay, the court will generally order that the execution of a writ of possession be stayed for a period (usually not exceeding 7 working days) but will direct the applicant to file and serve a notice of motion seeking appropriate orders and an affidavit in support.
At our request, the Practice Note now requires the Duty Registrar to record short reasons for granting an ex parte stay, which will assist lenders to prepare their arguments in response when a matter is next before the court.
The Practice Note now also provides that in the ordinary course, an officer of the Court will inform the Sheriff by fax if an ex parte stay has been granted and will provide the lender’s lawyer by email or fax with copies of the Court order and any affidavit relied upon on the stay application. This is an improvement on the relatively ad hoc information which has been provided by the court previously and was brought about by the feedback we and other lender lawyers provided to the Supreme Court.
Non-urgent applications (where no time has been fixed for the sheriff to take possession of the property or that time is more than 4 days away) will be listed for hearing in court before the Registrar, Common Law Case Management.
The Practice Note now explicitly provides that where an applicant has previously been granted a stay, unless there is a good reason not to do so, the Duty Registrar will stand down an urgent application and require the applicant to notify the plaintiff that an application for a stay is being made so that the plaintiff has an opportunity to appear on the application. If the application is opposed by the lender, it will be referred to the Registrar, Common Law Case Management so that the application can be heard and determined in open court.
Reduction In Court Turnaround Time
In early October, the Chief Justice of the Supreme Court delegated additional powers to chief clerks, and clarified the delegation to registrars. The court is anticipating clearing its backlog and substantially reducing turnaround time for applications which are considered in the absence of the parties. It has been an ongoing frustration to us that the time taken by the registry to deal with an application for default judgment and/or a writ of possession can be up to 2 months, so we welcome this change.
Future Improvements In The Possession List
One of our senior associates has been working with the NSW Attorney General’s Working Party on Civil Procedure in relation to court rules and court forms, in anticipation of the rollout of JusticeLink, the NSW courts’ electronic case management system over the next 24 months. We are promised that JusticeLink will reduce duplication of data across courts, allow faster and easier access to information, and improve case management.
Eventually, it is intended that JusticeLink will process automatically a variety of applications which are considered in the absence of the parties, such as applications for default judgments and writs of execution. A two hour turnaround is proposed when documents containing certain threshold information are filed electronically through JusticeLink. Even though JusticeLink has not commenced, the relevant court rules and forms are being progressively amended with a view to the requirements of JusticeLink. We are already assisting the court to trial eFiling in Possession matters, however the eFiling trial is much more manual than the fully functional JusticeLink is anticipated to be.
In view of our involvement with this JusticeLink project, we have been invited to redraft part of the Possession List Practice Note to enable lenders to prepare only one affidavit containing all the evidence required by the rules in support of applications for default judgments and for writs of possession, where those applications are filed within a fortnight of each other (instead of separate affidavits, as required now). This will save lender’s time and improve efficiency.
We are optimistic that the new Possession List Practice Note, the revised court forms (from early 2008), and JusticeLink (during 2008 and 2009) will make possession practice on behalf of lenders more streamlined.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.