Step by step guide - Stay of enforcement

You will need two forms: 

• ​​Form 20 - Notice of motion
  
• Form 40 - Affidavit.
  

You can get copies of the forms from: 

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

You can also complete and file this form online using the NSW Online Registry. 

You can fill out your form:

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

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

• ​The case number, the other party's name and the address of the court where the judgment was made. You will find this information on the statement of claim. If you don't have a copy of the statement of claim, contact the court to get this information.
  
• How much time you need to make arrangements to pay the debt.
  
• Whether or not the application is urgent. For example, it may be urgent if the other party has already started enforcement action. 
  

Sample:  Sample notice of motion – stay of enforcement.

The affidavit should explain:

• ​why you need the stay
  
• how long you need the stay for
  
• when you expect to pay the judgment debt
  
• where you are getting the money to pay the judgment debt. 
  

You need to sign the affidavit in two places - under the heading 'Signature' and under the heading 'Affidavit'. You need to make an oath or affirmation and sign it in front of lawyer or a justice of the peace (JP). If the Affidavit section of the form is on more than one page, you and the witness must sign the bottom of each page.  

Sample:  Sample affidavit – stay of enforcement

The final step is to take or send the forms to the local court where the statement of claim was filed. 

​You must file the notice of motion within 14 days of signing it and swearing the affidavit.

You should take three copies, one each for:

• ​​the court
  
• you
  
• the other party.
  

When you file the forms, the court will give you a hearing date. The court will then send the other party a 'notice of listing' telling them of the date, time and place of the hearing.

You can serve the notice of motion and affidavit:

• ​in person
  
• by post to the address for service on any court documents you have received (such as the statement of claim). 
  

The other party must receive the notice of motion and affidavit at least three days before the date of the hearing.

If the other party has already started enforcement action, the court may make a temporary order without a hearing, then notify the other party of your application and set a date for a short court hearing about the application.

The notice of motion will be listed for a hearing. At the hearing, the registrar or magistrate will consider your notice of motion and affidavit and any submissions from you and the other party.

At the hearing, the other part​y may object to your application because, for example:

• ​they think you may be transferring or selling assets to avoid paying the debt
  
• they think you may dispose of the goods
  
• they think you have avoided paying the debt for a long time. 
  

The other party could also agree to the stay of enforcement. 

It may be useful to make notes about what you want to say at the hearing. Your submissions should include the reasons why you want a stay of enforcement. 

If your application fails

If the court refuses your application for a stay of enforcement, the other party can continue to enforce the judgment. 

You can apply to have the decision reviewed by a magistrate. You must do this within 28 days of the registrar's decision. Before asking for a review, you should get legal advice.

The registrar or magistrate may also make an order about costs.

If your application succeeds

If the court grants you a stay of enforcement, this prevents enforcement action from being taken or from continuing until the date of the stay. You may be ordered to:

1. ​make arrangements to pay the judgment debt within a certain time.  For more information, see Paying the claim.
   
2. file a defence within a certain time (if you also applied to set aside a default judgment and were successful). For more information, see Step by step guide - Filing a defence.

If the original judgment was made in another court or tribunal in Australia, you usually need to apply to set aside the judgment or order in that court or tribunal before you can apply for a stay of enforcement. You should get legal advice if you are not sure.