This chapter deals with the situation when:
- there is a court judgment for the possession of your home and the total amount owing, and
- you do not have a reasonable chance of arguing that the judgement should be set aside, that is, you do not have an arguable defence to the statement of claim (such as circumstances described in Chapter 4: What if the lender has been unfair?) and you do not have a reasonable explanation for not responding to the statement of claim earlier. Get legal advice immediately if you think you may have a defence.
- you need more time to:
- refinance your loan,
- sell your home, or
- move out of your home.
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Limitations to lodging a complaint
Once a court judgment exists, there are only limited circumstances in which you can lodge a complaint with AFCA (see When should I lodge a complaint with AFCA?).
Repayment arrangements after judgment
After the lender has judgment you can still try to negotiate a repayment arrangement with the lender. If the lender agrees to a repayment arrangement, make sure the arrangement is confirmed in writing!
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Missing a payment after judgment
If you make a repayment arrangement after the court has granted judgment, the lender can apply immediately to get possession of your home if you miss a payment even by a day or you are a few cents short.
How to get a stay of an eviction
The court can give you an order to ‘stay’ an eviction, which means that your eviction date will be placed on hold until a later date, or until the stay is lifted.
You should try to get the lender to agree to a stay. If unsuccessful you should lodge a complaint with AFCA immediately (but also get legal advice as AFCA may not have time to help you if you lodge too close to the eviction date). If AFCA can’t help, you will need to apply to court.
Stays are usually only given for a few weeks (or less commonly months) at a time.
Step 1
Try to get the lender to agree to a stay and to call off the Sheriff so the eviction does not take place. The lender will usually agree to a stay if:
you have sold your home and you are just waiting for the settlement date to occur, or you can show you are in the process of selling (e.g. you can show them a signed real estate agent agreement or advertising and a contract for sale),
- you have approval for a refinance of your home loan and you just need time to complete that process – the lender will ask you to send them a copy of your approval, or
- you need extra time to move out due to a medical condition or you have another good reason why you are delayed in finding somewhere else to live.
Step 2
If the lender will not agree, you need to lodge a complaint with AFCA immediately. Once a judgment exists, AFCA can make the lender give you more time but only if you are about to refinance or sell the property or you need more time to move out because you are facing personal hardship (such as temporary or serious illness). Warning: if you lodge too close to the eviction date, AFCA may not be able to help you at all. Ring AFCA to check if you are unsure. You may still need to apply for a stay at the court.
Step 3
If AFCA cannot help, you can apply to the court. This process takes time as there are court forms for you to fill out, have witnessed in front of a JP or solicitor and in some cases, a fee waiver form to be approved as well. You need to act quickly. You should also attach any evidence you have to support your stay. If possible you should seek legal advice about these documents. You can book an appointment with the duty registrar at the Supreme Court of NSW, in person for information about these forms. The duty registrar CANNOT give you legal advice.
The court will consider a stay if you are about to sell or refinance, or need a little bit more time to move out because of personal hardship. The court will decide what they think is fair. It is important to be ready to move out if you are unsuccessful in applying to the court for a stay.
Getting a stay of an eviction from the NSW Supreme Court
This is an example of how you can apply for a stay in NSW. If you are outside NSW, see Chapter 14: Useful contacts for services that can give you advice on getting a stay in your state or territory. Lodging a stay usually will mean more legal and court costs are added onto your mortgage. The lender will be notified of your application and given a chance to respond.
Types of stays
In NSW, there are two main types of stays depending on when you apply for the stay:
- urgent stay if there are less than four working days until your eviction date, and
- non-urgent stay if there are more than four working days until the eviction date.
Urgent stay
An urgent stay is obtained by direct application of a notice of motion and affidavit in support to the duty registrar at the Supreme Court of NSW. The duty registrar will make a decision based on the information you supply alone. The duty registrar can order a stay for up to 7 days.
The duty registrar will also list the matter within 7 days before the registrar, in court. You must notify the plaintiff (i.e. the lender and their solicitor) of the date the matter is listed before the registrar.
If you need more time than the 7 days, you will need to file a further notice of motion and a further affidavit in support and appear before the registrar in court on the date the matter is listed.
The plaintiff can also appear on this date and can oppose your application for a further stay. If you have previously applied for an urgent stay, the duty registrar will generally require you to notify the plaintiff and will list the matter before a judicial officer.
Non-urgent stay
A non-urgent stay application is set down for a time and date for both you and the plaintiff to argue, in court, whether the stay should be granted or not, after the plaintiff has been notified about your application.
With both an urgent and non-urgent application for a stay, legal costs for the lender will generally be added to your loan account, in accordance with your mortgage contract.
To get a stay in NSW you need to complete:
- Form 20 Notice of Motion, and
- Form 40 Affidavit in support.
Both forms can be found at Uniform Civil Procedure Rules (UCPR) forms.
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Waive or postpone the filing fee
The usual court fee for filing these forms is $718 (as at October 2023), but you can apply to the court to waive or postpone the fee. You can find the fee waiver form, along with guidelines for when the court will waive or postpone a fee at the NSW Supreme Court website.
The application to waive or postpone the filing fee needs to be submitted to the duty registrar. The application to waive or postpone the filing fee cannot be submitted via the online registry.
Sample forms
Download ‘Form 20 Notice of Motion’ from the Uniform Civil Procedure Rules (UCPR) forms website, and fill it out using the directions below:
- For the section “filing details” and “person seeking orders’ – write your name and how you are described in the statement of claim, i.e. “defendant” or “first defendant” or “second defendant”.
- “Filed in relation to” – write “Plaintiff’s claim”.
- “Legal representative” – leave this blank if you do not have a solicitor.
- “Contact name and telephone” – write your name and your most reliable telephone number.
- “Contact email” – write your email address (you must check this regularly as it will be used by the court and the plaintiff to contact you. Make sure you check any spam or junk folders regularly).
- “Person affected by orders sought” – write “Plaintiff”.
- For the section “Orders sought”:
- A stay [change to “urgent stay” if you are applying less than four working days from your eviction date)] on the writ of possession due to be executed at [eviction time and date].
- No order as to costs.
- You need to sign and date the form and add in the registry details for the Supreme Court.
Download ‘Form 40 Affidavit’ from the Uniform Civil Procedure Rules (UCPR) forms website, and fill it out using the directions below. Delete the parts that do not apply to your situation:
| Affidavit details | |
|---|---|
| Name | [your name – the person making the affidavit] |
| Address | [this can be your work or home address] |
| Occupation | [your usual job, whether you are working or not at the time] |
| Date | [the date the affidavit is signed] |
I say on oath or I affirm: [delete one of these] –
- I am the defendant [or ‘first defendant’, or ‘the second defendant’ – check how you are named on the statement of claim.]
- I believe that the information contained in this affidavit is true.
- On [insert date] I received a notice to vacate from the NSW Sheriff in relation to my home.
- I have never received a notice to vacate before [remove if not correct].
[NEXT SET OUT THE GROUNDS FOR THE STAY – delete any that don’t apply to you]:
I am unable to find another place to live
- I live in the home with [insert details – my wife/husband/partner and my children [insert ages, and number], anyone else].
- I am not able to find alternative rental accommodation [insert detail of your attempt to do so].
- I will not have anywhere to go as I have [no family that I am able to stay with, etc].
- [insert any special circumstances that preclude you from moving or attempts you have or will make and how long it will take].
I am refinancing
- I have received a loan approval from [name of bank, credit union or building society]. [OR I am waiting on a response to my loan finance application with [name of bank] which I submitted on [date]. I expect a decision by [date]. Annexed and marked “A” is [describe what you are attaching – eg. loan approval, or update letter].
- The amount of credit which has been [approved/applied for] being [amount of credit approved] is enough to pay the mortgage in full.
- [Any other details you wish to add to explain the situation and why you need more time]
Sale of property
- I seek time to sell the property known as [address of your property] (“the home”) myself.
- I have placed the home on the market. I attach a copy of the sales Real Estate Agency Agreement. Annexed and marked “A”.
- I have sought the advice from the real estate agents about the potential sale price. I believe that the home is valued at approximately $[insert] to $[insert].
- The real estate agent told me that I will realistically be able to obtain $[insert] for the home. The current balance on the mortgage is approximately $[insert].
- I have been to a conveyancing solicitor. Contracts for the sale of the property have been drafted. Annexed and marked “B” is a copy of the contract.
- I believe that I will exchange contracts for the sale of the home within the next [time you estimate for the exchange to take place]. If I am able to sell the property I can discharge the whole of the debt under the mortgage.
Defence
- I think I may have a defence, and I am seeking legal advice. I have an appointment with [legal aid] [a private solicitor] about this matter on [insert date].
You can add to and change the template above to best reflect your situation. It is very important that all the information in your affidavit is true and correct, to the best of your knowledge.
Your signature on the affidavit must be witnessed by a Justice of the Peace, solicitor, barrister, commissioner for affidavits or Notary Public. Remember to take photo identification with you (must be original or certified copy).
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Lender's legal and court costs
The lender will normally add their legal and court costs for responding to your stay application onto your mortgage even if the court is not making any costs orders.
Where do I send the forms?
You need to file these two forms, and the fee waiver application:
- For urgent stays – file the forms in person with the duty registrar at the Supreme Court of NSW on Level 5 of the Courts Building, Queens Square Sydney. You can attend in person and take a ticket.
- If you are seeking an urgent stay and you are unable to attend the court in person, you can file the forms and the fee waiver application by emailing sc.emailfiling@justice.nsw.gov.au. In the subject line of the email you should write “URGENT – seeking stay of eviction”.
- Alternatively, you can book an appointment with the duty registrar by emailing sc.enquiries@justice.nsw.gov.au with the subject line “Request for appointment with the duty registrar”, and include your contact number and email. You can find further details about this process by visiting Supreme court duty registrar services.
- For non-urgent stays – if you are lodging a fee waiver application you need to book an appointment with the duty registrar first. You should then attend on that day, see the duty registrar and then file the forms in person on Level 5 of the Courts Building, Supreme Court of NSW, Queens Square Sydney between 9:30 and 4:30pm weekdays.
It is recommended you file the forms in person, especially if your eviction date is close. The online registry is available but REMEMBER, you cannot lodge a fee waiver application in the online registry AND there is no ability to draw attention to the urgency of the application for a stay.