Australia: New Possession List Practice Note

Last Updated: 28 November 2007
Article by Scott Atkins, John Evans and Mark Hilton

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

  1. translated cover sheet likely to reduce the number of urgent applications to stay execution of writs of possession.
  2. delegation of additional powers by the supreme court to chief clerks will substantially reduce turnaround time for applications considered in the absence of parties.
  3. the rollout of justicelink will reduce the duplication of data across courts, allow faster and easier access to information, and improve case management.
  4. 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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.