NSW UCPR [Form 40] Affidavit

When is a NSW UCPR [Form 40] Affidavit used?

See UCPR Part 35 for more information.

The rules of the relevant Court will provide guidance on whether an Affidavit or a Witness Statement should be used.

To be useful, an Affidavit or Witness Statement MUST succinctly and accurately convey the key facts of a case to prove or defend a claim.

If you are preparing an Affidavit of Service you should use NSW UCPR [Form 41].

What is the difference between an Affidavit and a Witness Statement?

An Affidavit is sworn evidence (generally sworn either on the bible or other religious text^ or by giving a non-religious affirmation) while a Witness Statement is unsworn.‍

For more information please read our FAQ.

Filed Affidavit becomes evidence once it is formally 'read' in Court by Counsel seeking to rely upon the Affidavit

The maker of the Affidavit, known as the deponent, still needs to attend Court in most cases as they will usually be required for cross-examination.

Document Overview:

✅ Suitable for the NSW Courts under the Uniform Civil Procedure Rules (NSW) 2005;

✅ Recommended only for use by legal professionals +/or at a minimum with review by a legal professional prior to filing with the Court;

✅ For use in all NSW Court registries for all NSW Courts including Local (General & Small Claims), District (All Lists^), Supreme (Common Law & Equity Divisions) and all Appeals to the NSW Court of Appeal.

Embedded Lawyer-Logic™ dynamically adapts to your answers to provide valuable guidance and help you avoid errors.

Who can make an Affidavit on behalf of a party?

See UCPR 35.3.

If a party is required to file an Affidavit or verify any matter by Affidavit, the Affidavit MUST be made by:

⚖️ The party
⚖️ If the party is a person under legal incapacity, by the party’s tutor
⚖️ if the party is a corporation, by a member or officer of the corporation or (if it is in liquidation) by its liquidator.

If the party is a body of persons lawfully suing or being sued:

⚖️ In the name of the body, or
⚖️ In the name of any member or officer of the body, or
⚖️ In the name of any other person associated with the body, by a member or officer of the body

If the party is the Crown or an officer of the Crown suing or being sued in his or her official capacity, by an officer of the Crown

If the proceedings are being brought in the plaintiff’s name by some other person pursuant to a right of subrogation:

⚖️ By that other person, or
⚖️ If that other person is a corporation, by a member or officer of the corporation or (if it is in liquidation) by its liquidator.

Local Court

If the proceedings are in the Local Court, the Affidavit can also be made:

⚖️ By the party’s solicitor, or

⚖️ By a commercial agent with respect to debt collection (within the meaning of the Commercial Agents and Private Inquiry Agents Act 2004 (NSW)), in relation only to proceedings on an application for:
• An instalment order, or
• An order for examination, or
• A writ of execution, or
• A garnishee order, or
• Default judgment (but only in the Small Claims Division), or

⚖️ By a person holding a licence as a real estate agent, strata managing agent or on-site residential property manager (within the meaning of the Property, Stock and Business Agents Act 2002 (NSW)), in relation only to proceedings on an application for:
• An instalment order, or
• An order for examination, or
• A writ of execution, or
• A garnishee order, or
• Default judgment (but only in the Small Claims Division), or
• The filing of a certificate under s 78 of the Civil and Administrative Tribunal Act 2013 (NSW).

Mandatory Requirements

When you make an Affidavit, you MUST:

✅ Have knowledge of the facts being deposed to (i.e. stated) in the Affidavit;

✅ Set out the facts that qualify you to make the Affidavit (e.g. you are making the Affidavit as tutor for the plaintiff).

Title of an Affidavit

The title of the Affidavit MUST include:

✅ The name of the deponent (i.e. the person making the Affidavit), and

✅ The date on which the Affidavit is made (i.e. sworn or affirmed).

The Supreme Court Rules require additional information to be included in the title of some Affidavits that are prepared for Supreme Court proceedings.

For example, ‘AFFIDAVIT OF EXECUTOR’, ‘AFFIDAVIT RELATING TO DE FACTO RELATIONSHIPS’.

Preparing an Affidavit

When you are preparing an Affidavit, you MUST make sure that you have at least one paragraph of the body of the Affidavit on the page that contains the following information.

For detailed instructions regarding properly making the Affidavit please refer to this FAQ.

Filing an Affidavit

See UCPR 35.9.

You MUST not file an Affidavit unless:

• the UCPR require you to file the Affidavit
• the rules or practice note of the court in which you are filing the Affidavit require you to file it
• the court gives you leave to file the Affidavit.

Legal Advice Recommended

The preparation of an Affidavit is a difficult and time consuming legal task.

In short, due to the complexities involved in the proper preparation of an Affidavit, together with the crucial importance of ensuring the facts and evidence support your application +/or pleadings:

➲ We recommend you contact our legal team to obtain legal advice and guidance.

Important Note:

The party filing this Form is required to serve a copy of the filed Form together with all other filed documents on all other parties to the proceeding.