Chapter 18: Sample forms
The forms in this chapter are based on the John and Samira case study outlined in 18.1. When preparing your forms, you should insert your details and replace or delete irrelevant information. You can also find step-by-step instructions for completion of most small claims (debtor) forms on the LegalAid NSW website. The general format of many of the forms is the same, containing administrative details that identify the application type, party details etc.
18.1 Defence (UCPR Form 7B)
Your defence form notifies the plaintiff and the court that you dispute a claim, and why. The ‘pleadings and particulars’ section of your defence should directly address the claims made by the plaintiff in their statement of claim. You can either ‘admit’, ‘deny’ (with reasons), or ‘not admit’ (where you are unsure) the claims made against you.
Case study — Disputed car accident claim (John and Samira)
John and Samira were involved in a car accident, and neither party is insured. Samira was stopped at traffic lights, and John hit her vehicle from behind. John’s car was severely damaged and he has issued a statement of claim against Samira, claiming that she was at fault because she stopped too quickly. John claims $4000 for repairs to his vehicle, $90 for interest, $105 for filing and $49 for service fees.
John makes the following claims in the ‘pleadings and particulars’ section of his statement of claim:
- On 10 March 2021, the plaintiff was driving behind the defendant, along Stacey Street in Bankstown.
- The defendant was driving fast and stopped her car abruptly at the traffic lights, in front of the plaintiff.
- Due to the defendant’s negligent driving, the plaintiff could not stop his car in time to avoid a collision and hit the back of the defendant’s car.
- The plaintiff incurred $4000 worth of damages to his car as a result of the defendant’s negligent driving.
- The plaintiff claims:
- a) $4000 in damages, and
- b) interest according to section 100 of the Civil Procedure Act 2005 from 10 March 2020 to 10 September 2021.
Samira is shocked to receive the claim because John had admitted fault at the scene. She also has the name of a witness who saw that John was driving too fast when he hit her car. Samira gets legal advice and decides to defend the whole claim, and also to seek compensation for the damage to her car. She files a defence (UCPR Form 7B) disputing John’s claim and a statement of cross-claim (UCPR Form 9), claiming $3500 for the damage to her car.
18.2 Statement of cross-claim (UCPR Form 9)
If you dispute the claim and feel that the other party owes you money, you should file a defence (defending the claim against you) and a statement of cross-claim (making your counter-claim). A statement of cross-claim must be personally served on the other party (see 9.5 in Chapter 9 for further information about the service of documents). There is also a filing fee which applies, and your cross-claim (and defence) must be filed within 28 days of receiving the initial statement of claim.
Samira decides to file a cross-claim against John, as she believes he was at fault and should pay for the damage to her car. In her cross-claim, Samira is referred to as the ‘cross-claimant’ and John will be the ‘cross-defendant’.
18.3 Notice of motion to pay by instalment (UCPR Form 46)
If you agree that you owe a debt, but can’t pay right away, you can acknowledge the debt by filing an acknowledgement of liquidated claim (UCPR Form 35) and a notice of motion to pay by instalment (UCPR Form 46). This should stop the creditor taking any further action against you and limit unnecessary enforcement costs. Your instalment application contains an affidavit and financial statement to explain ‘why’ you can’t pay right away. The court may or may not accept your application. Form 46 includes an ‘affidavit’, so your signature must be witnessed by an official witness (such as a justice of the peace, solicitor or barrister). You should also send copies to the other party, so they are aware of your position. Generally, an application to pay by instalments will be decided ‘in chambers’, and there is no need for the parties to attend any hearing. If the judgment creditor disputes the application, it may be listed for hearing.
After considering Samira’s cross-claim, John decides it may be sensible to acknowledge the debt and arrange an instalment plan. He files a Form 35, acknowledging that he owes the debt and a Form 46 (asking the court to allow him to pay by instalment). In this scenario, John would also need to file a notice of discontinuance (Form 33), which will discontinue his initial claim against Samira. Because he is responding to a cross-claim, John is the ‘cross-defendant’ and Samira the ‘cross-claimant’.
John’s work hours have recently been reduced, but he believes he can still afford to pay $500 per fortnight. Given that this amount is possible on John’s income and that payment should be complete in a few months, this instalment plan is likely to be accepted by the court.
18.4 Sample application to change venue — notice of motion (UCPR Form 20) and affidavit (UCPR Form 40)
If proceedings are lodged in a court that is a significant distance from you (over 100 km), and you want to defend the matter, you may consider asking for the venue to be changed. To do this, you must file a notice of motion (UCPR Form 20) and an affidavit explaining your reasons (UCPR Form 40). Ideally, you should file these documents with your defence.
In the case study above, we will assume that both parties are still denying liability for the accident and that the matter will need to go to pre-trial review and hearing. The accident occurred in Bankstown, and John filed the initial statement of claim in Bankstown Local Court. Samira, however, lives in Newcastle and John in Hornsby. Samira would like to have the proceedings moved to Newcastle as she currently has no car and there appears to be no good reason for the matter to be heard in Bankstown. She files and serves a Form 20, accompanied by a Form 40, requesting a venue change.
18.5 Affidavit (UCPR Form 40) — sample witness statement in debt matter
A witness statement is the written account of events, prepared by a direct witness (see 11.3 in Chapter 11 for further information about what they should include). There are no formal requirements for witness statements in the Small Claims Division of the Local Court, but submitting your evidence in the form of an affidavit can be helpful, as its contents are ‘sworn/ affirmed’ to be the truth by the person making the statement.
In the case study above, an innocent bystander, Alison Chan, witnessed the accident. She checked on the parties at the scene and agreed to provide Samira with a statement if needed.