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Newfoundland Regulation 1997


NEWFOUNDLAND REGULATION 69/97

NEWFOUNDLAND REGULATION 69/97

Rules of the Supreme Court, 1986 (Amendment)
under the
Judicature Act

(Filed May 26, 1997)

Under the authority of section 55 of the Judicature Act, the Rules Committee of the Trial Division of the Supreme Court of Newfoundland makes the following Rules.

Dated at St. John’s, October 29, 1996 and May 7, 1997.

Barry R. Sparkes, B.C.L.
Registrar of the Supreme Court
Secretary, Rules Committee

RULES

Analysis


        1.   Rule 13.02 Amdt.
Claim to property taken by sheriff

        2.   Rule 28 Rep.
Attachment orders

        3.   Rule 50 Amdt.
Enforcement of orders: general

        4.   Rule 51 R&S
Execution

        5.   Rule 52 Amdt.
Receivership orders

        6.   Commencement


        1. (1) Rule 13.02(1) of the Rules of the Supreme Court, 1986 is repealed and the following substituted:

Claim to property taken by sheriff

13.02 (1) A person who makes a claim to or in respect of property taken or intended to be taken by the sheriff in the execution of any process or to the proceeds of it shall serve a notice of claim on the sheriff in accordance with section 163 of the Judgment Enforcement Act.

             (2)  Rules 13.02(2), (3) and (4) of the Rules are repealed and the following substituted:

             (2)  Sections 163 to 168 of the Judgment Enforcement Act shall apply to a notice of claim served under rule 13.02(1).

        2. Rule 28 of the Rules is repealed.

        3. (1) Rules 50.01(1) and 50.01(3) of the Rules are repealed.

             (2)  Rule 50.04(1) of the Rules is repealed and the following substituted:

Where leave to issue orders necessary

50.04 (1) The Registrar shall not issue a receivership order or contempt order to enforce an order without first obtaining the leave of the Court where

             (a)  6 years or more have elapsed since the date of the order;

             (b)  a change has taken place, whether by death or otherwise, in the party entitled or liable under the order; or

             (c)  under the order, any person is entitled to relief subject to the fulfilment of any condition which it is alleged has been fulfilled.

             (3)  Rule 50.05 of the Rules is repealed and the following substituted:

Duration of orders

50.05 A receivership order or contempt order is valid for a period of 6 years from the date of its issue.

             (4)  Rule 50.06 of the Rules is repealed.

        4. Rule 51 of the Rules is repealed and the following substituted:

RULE 51
EXECUTION

Money in Court

51.01 Where money is standing to the credit of a judgment debtor in Court, the Court may, on application of the judgment creditor or sheriff and on notice, make such order with respect to the money in Court as it thinks just.

Wrongful execution

51.02 (1) Where an application is made pursuant to the provisions of Part XII of the Judgment Enforcement Act or otherwise, claiming that enforcement proceedings were wrongfully initiated under that Act or that an execution was wrongfully made or claiming relief based on any of the matters referred to in that Act, the Court may

             (a)  order the recovery of any seized property pursuant to the provisions of Rule 27, which shall apply with the necessary changes;

             (b)  order the return or disposal of any property seized pursuant to enforcement proceedings upon such terms as it thinks just;

             (c)  set aside, stay, restrict or vary any enforcement proceedings already undertaken or about to be undertaken;

             (d)  determine priorities and other outstanding issues between or among competing claimants in accordance with Rule 13;

             (e)  set aside or amend any notice of judgment filed under the Judgment Enforcement Act;

              (f)  order damages to be awarded subject to any applicable restrictions in the Judgment Enforcement Act; and

             (g)  grant such other order as it thinks just.

             (2)  Where a party to a judgment fails to assert any right available to that party with respect to the validity of a notice of judgment or of enforcement proceedings, and failure to do so prejudices the rights of any other party or of any person interested in any property seized or available to be seized pursuant to enforcement, the other party or interested party may assert the right for the protection of his or her own interest.

        5. (1) Rule 52.01 of the Rules is repealed and the following substituted:

Application of Rule 50

52.01 The provisions of Rule 50 apply, with the necessary changes, to a person appointed as a receiver under Rule 52.

             (2)  Rule 52.03(1)(a) of the Rules is repealed and the following substituted:

             (a)  may have the same powers and duties with respect to enforcement proceedings as the sheriff has under the Judgment Enforcement Act;

             (3)  Rule 52.03(1)(c) of the Rules is repealed and the following substituted:

             (c)  may sell property received by the receiver in the same manner as if it were being sold under enforcement proceedings under the Judgment Enforcement Act, or otherwise dispose of the property as ordered by the Court;

Commencement

        6. These amendments to the Rules come into force on the day the Judgment Enforcement Act comes into force.